Seminar Workshop on Mediation

June 25 to 27, 1999 - Subic, Olongapo City

Participants

Judges of the pilot areas, Court Personnel, Supreme Court lawyers, 18 recommendees from Mandaluyong, 12 recommendees from Valenzuela

Internship Program - Dec. 15, 1999 to Feb. 15, 2000

Participating courts - Regional Trial Courts and Metropolitan Trial Courts of Mandaluyong and Valenzuela Cities

Success Rate - 42%

Seminars - Pre Workshop Training, Basic Mediation Workshop I, Basic Mediation Workshop II, Workshop on Family Mediation, Evaluation Workshop on the Pilot Testing of Court-Referred Mediation

Participants

Family Court Judges, Court Personnel, PBA/IBP Lawyers, PHILJA Staff, other professionals

Lecturers

Singapore Mediation Center - Judge The Hwee Hwee, Dr. Loong Seng Onn, Atty. George Lim

Local Lecturers - Dean Eduardo D. de los Angeles, Dean Reynaldo L. Suarez, Ms. Annabelle T. Abaya, Dr. Fortunato Gupit

Internship Program

Participating courts - selected pilot courts situated in Mandaluyong, Pasay and Quezon City

Overall Success Rate - 85%

3rd Pilot Testing

Basic Seminar Workshop on Mediation

Nov. 2000 to Feb. 2001

Areas - Metro Manila, Cebu and Davao

Total number of participants - 396

Internship Program - Nov. 2000 to Feb. 2001

Participating courts - selected RTCs and MeTCs of Metro Manila, Cebu and Davao

Overall success rate - 77%

Refresher Courses - Oct. 2000 to March 2001

Advocates Forum - January to March 2001

Judges, Lawyers, Business, Government, Academe and NGO, and Media

Conference and Workshop - March 21, 2001

Settlement Weeks - Mar. 26 to Apr. 6, 2001

Participating courts - all courts of Metro Manila, Cebu and Davao

Overall success rate - 84%

Launching of the Philippine Mediation Center - Citibank Towers, Makati

Peacemaker’s Circle Awards - June 5, 2001

Pursuant to A.M. No. 01-10-5-SC-PHILJA, dated October 16, 2001, designating the Philippine Judicial Academy (PHILJA) as the component unit of the Supreme Court for court-referred, court-related mediation cases and other alternative dispute resolution mechanisms, and establishing the Philippine Mediation Center for the purpose.

Functions of the PMC

Establish, in coordination with the Office of the Court Administrator (OCA), units of the Philippine Mediation Center (PMC) in courthouses, and in such other places as may be necessary. Each unit, manned by Mediators and Supervisors, shall render mediation services to parties in court-referred, court-related mediation cases

Recruit, screen, train and recommend Mediators for accreditation of the Court

Require prospective Mediators to undergo four-week internship programs

Provide training in mediation to judges, court personnel, educators, trainors, lawyers, and officials and personnel of quasi-judicial agencies

Oversee and evaluate the performance of Mediators and Supervisors who are assigned cases by the courts

Implement the procedures in the assignment by the PMC units of court-referred, court-related mediation cases to particular Mediators.

The operational control and supervision over PMC Units and Mediation Chapters with respect to court-referred, court-related mediation cases shall be with the Mediation Division of PHILJA, in coordination with the OCA.

A Clerk-in-Charge shall be assigned by the Executive Judge, after prior consultation with PHILJA and OCA, to coordinate between the courts and Mediators and Supervisors in every PMC units.

Role of the Presiding Judge

The Presiding Judge, before whose court the case subject of mediation is pending, shall extend to the Mediator, every possible support and assistance.

The Mediator whose selection / appointment is confirmed by the Court is deemed an officer of the court.

The following cases are referable to mediation:

All civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure, except those which by law may not be compromised

Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law

The civil aspect of BP 22 cases

The civil aspect of quasi offenses under Title 14 of the Revised Penal Code

The trial court, after determining the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution, shall issue an Order referring the case to the Philippine Mediation Center (PMC) Unit for mediation and directing the parties to proceed immediately to the PMC Unit. The Order shall be personally given to the parties during the pre-trial. Copy of the Order together with a copy of the Complaint and Answer/s, shall be furnished the PMC Unit within the same date.

The PMC Unit

There shall be a PMC Unit in courthouses or near the premises of the trial court for court-referred mediation proceedings.

Selection of Mediator

The Supervisor of the PMC Unit shall assist the parties select a mutually acceptable Mediator from a list of duly accredited Mediators and inform the parties about the fees, if any, and the mode of payment. If the parties cannot agree on the Mediator, then the Supervisor shall assign the Mediator. The trial court shall immediately be notified of the name of the Mediator, and shall thereafter confirm the selection/appointment of the Mediator.

The Mediator shall immediately commence the mediation proceedings unless both parties agree to reset the mediation within the next five (5) working days, without need of further notice.

Lawyers may attend the mediation proceedings and shall cooperate with the Mediator towards the amicable settlement of the dispute.

The Mediator shall be considered as an officer of the court

Conference with both parties present

If no settlement during the conference, hold separate caucuses with each party

The Mediator shall submit to the trial court, a status report on the progress of the proceedings at the end of the mediation period

The mediation proceedings and all incidents thereto shall be kept strictly confidential, unless otherwise specifically provided by law, and all admissions or statements made therein shall be inadmissible for any purpose in any proceeding

Ex-parte communications shall not be communicated

Views expressed, suggestions, admissions, proposals and willingness to a accept a proposal for settlement cannot be introduced as evidence

No transcript or minutes of the mediation proceedings shall be taken, and personal notes of the Mediator shall not be furnished the trial court and shall be inadmissible as evidence in any other proceedings

Period during which the case is undergoing mediation shall be excluded from the regular and mandatory periods

The period for mediation shall not exceed 30 days, extendible for another 30 days

Bachelor’s degree

At least 30 years of age

Good moral character

Willingness to learn new skills and render public service

Proficiency in oral and written communication in English and Pilipino

Continue to be of good moral character

Render mediation services at least once a week to any PMC unit

Participate during the Settlement Weeks

Complete refresher courses to be prescribed by PHILJA within the two (2) year period

Responsibilities to Courts

Responsibilities to Parties

Impartiality

Competence

Conflict of Interest

Avoidance of Delays

Prohibition against solicitation or advertising

Prohibition against coercion

Personal opinion

Disclosure of fees

Confidentiality

Role of Mediator in Settlement

Relationship with other professionals

Responsibilities to Society

Pro Bono service

Support of mediation

Preparation for Mediation

Talks separately with the parties to prepare them for the mediation

Gathers information about the case

Diagnoses the dispute

Arranges an appropriate venue for the mediation

Mediator’s Opening Remarks

Presentation of Issues and Concerns of the Parties

Mediator’s Summary of Issues to be Resolved

Problem Solving

Final Bargaining

Final Written Agreement and Closing

Katarungang Pambarangay is an innovation of the Philippine justice system. It provides for resolution of disputes at the barangay level in order to achieve peace and harmony within the community and to provide an accessible and effective form of justice for community members. The Katarungang Pambarangay Law provides for local disputes which fall under its jurisdiction to be resolved through mediation, conciliation, or arbitration by the Lupong Tagapamayapa of which the Punong Barangay is the Chairman.

The Katarungang Pambarangay system is designed to achieve the following objectives:

To obtain a just, speedy and inexpensive settlement of disputes at the barangay level

To preserve Filipino culture and traditions concerning the amicable settlement of disputes

To relieve the courts of docket congestion and thereby enhance the quality of justice dispensed by them.

PD 1508, otherwise known as the Katarungang Pambarangay Law, was signed on June 11, 1978 and took effect on December 11, 1978. The law formally organized and institutionalized the system of amicable settlement of disputes at the barangay level, with the purpose of promoting harmony, peace and order, and community cooperation.

From 1978 to 1991, the Department of Interior and Local Government (DILG), through the Bureau of Local Government Supervision (BLGS), was tasked by law to administer, implement, supervise, monitor, evaluate, and issue the required implementing rules and regulations.

The Local Government Code of 1991 (RA 7160) took effect on January 1, 1992, and included provisions for the Katarungang Pambarangay. The revision of the Katarungang Pambarangay Law expanded the jurisdiction of the Katarungang Pambarangay to include a wider range of cases and made some minor procedural changes to the law. The administration and implementation of the Katarungang Pambarangay was devolved to the local government units (LGUs), specifically to the Office of the City / Municipal Mayor. Every city / municipal council is now mandated by law to provide the necessary budgetary outlay for the efficient administration and implementation of the Katarungang Pambarangay.

The DILG, through the Economic and Incentives Awards Program, is tasked to provide incentive awards to outstanding Lupong Tagapamayapa at the regional and national levels. The Department of Justice is mandated to issue the necessary implementing rules, regulations and amendatory rules. Every city / municipal lawyer and public prosecutor is tasked to render legal opinions on cases presented by the Punong Barangay or the Pangkat ng Tagapagkasundo through the Lupong Tagapamayapa.

If parties are unable to settle disputes themselves through negotiation and if the dispute falls under the jurisdiction of the Katarungang Pambarangay, they must bring the dispute to the Punong Barangay to attempt settlement prior to filing their complaint in court. In the Katarungang Pambarangay system, the Punong Barangay will, as directed by the parties, mediate or arbitrate the case. If the Punong Barangay is unable to achieve a settlement, the case is referred to the Pangkat ng Tagapakasundo, a panel of three members of the Lupong Tagapamayapa, who can conciliate, mediate or arbitrate the case. If neither the Punong Barangay nor the Pangkat is able to effect a settlement, the Lupon Secretary or the Pangkat Secretary (with the attestation by the Lupon or Pangkat Chairman) will issue a certificate to file action in court, and the parties may then file the complaint in court. The Katarungang Pambarangay law also provides for the resolution of disputes through indigenous systems of dispute resolution; where settlement is not achieved, the Punong Barangay will issue a certificate to file action in court.

SUBJECT MATTER FOR AMICABLE SETTLEMENT

All disputes EXCEPT:

Where one party is the government or any subdivision or instrumentality thereof;

Where one party is a public officer or employee and the dispute relates to the performance of his duties;

Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P 5,000;

Offenses where there is no private offended party;

Where the dispute involves real property located in different cities or municipalities unless the parties agree to submit their differences to amicable settlement by an appropriate Lupon;

Disputes involving parties residing in barangays of different cities or municipalities except where such barangay adjoin each other and the parties agree to submit to amicable settlement by an appropriate Lupon.

The Punong Barangay is the primary implementor of the Katarungang Pambarangay. The role of the Punong Barangay under Katarungang Pambarangay Law (RA 7160) is two-fold:

To serve as an administrator pursuant to the provisions of the Katarungang Pambarangay Law

To assist parties to reach an amicable settlement, through the use of mediation skills and procedures, or if requested by the parties, to render a fair and reasonable decision through the arbitration process

As Chairman of the Lupon, the Punong Barangay has many tasks outlined in the Katarungang Pambarangay Law. In his role as an acknowledged leader of the community, the Punong Barangay is expected to represent all the people in performing the following administrative duties:

Recruit and appoint Lupon members

Orient and train Lupon members

Constitute the Pangkat

Serve as Chairman of the Lupon and conduct regular monthly meetings of the Lupon

Supervise the Secretary of the Lupon and ensure that reports and documents are complete

Enforce amicable settlement or arbitration awards

The Lupong Tagapamayapa (Lupon) is a group of 10 or 20 people, selected by the Punong Barangay, who possess integrity, impartiality, independence of mind, sense of fairness, and reputation for probity. When the Punong Barangay is unable to settle a dispute, the case is referred to a panel of three Lupon members (the Pangkat) for conciliation or arbitration. The Pangkat members are selected by the parties, or if the parties cannot agree, chosen by lot by the Chairman of the Lupon.

The Lupon members meet monthly to provide a forum for exchange of ideas among its members and the public on matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes. The Lupon submits data on the barangay disputes and their disposition to the Municipal Monitoring Unit.

The Barangay Secretary serves as Secretary of the Lupon. The Secretary’s duties are to record the results of mediation proceedings before the Punong Barangay and submit a report to the proper city or municipal courts. The Secretary also receives and keep the records of proceedings submitted by the various conciliation panels.

Each Pangkat selects one of the Pangkat members to serve as Pangkat Secretary. The Pangkat Secretary prepares the minutes of the Pangkat proceedings, submit a copy, attested by the Lupon Secretary, to the proper city or municipal court, and issues notices to the parties concerned. Each Pangkat also selects a Pangkat Chairman who presides at the conciliation meeting.

The Municipal Monitoring Unit is established in each municipality to provide the Department of Interior and Local Government periodic program implementation feedback. The Unit collects and submits data to the DILG on disputes filed before the Lupong Tagapamayapa, the disposition of the disputes, and problems encountered in the implementation of the program. The Monitoring Unit initiates actions on issues and problems and elevates unresolved issues to the DILG.

In a society where decision-making processes are in the hands of a few; where the ability to dominate because one is more powerful than another party, is still the way of life, mediation is seen as a viable option in resolving disputes because the process entails finding a mutually beneficial solution to the conflict. It is an alternative to the court-led or legal framework of dispute resolution; it covers procedural and psychological issues that the law does not tackle.

Furthermore, the parties equally claim the power to determine the outcomes of their own conflict.

Here in the Philippines, the Mediation Network for Sustainable Peace has been the pioneer in resolving Community Based Mediation. MedNet calls this the “use of power with grace”. It means the use of power that is “grace-filled”, meaning, the exercise of power informed and influenced by the spiritual values that a person or a group of persons is anchored on. It also means the “graceful use of power,” where the use of power does not disempower one’s self and others, instead it empowers all the parties concerned to resolve the conflict in a just and caring way.

Empowering Dispute Resolution/Management Processes (EDR/MP) is founded on two principles:

The recognition of the indigenous people’s conflict resolution practices, e.g., acknowledgement of the role and power of the council of elders. Such practices are not on the one alternative for they came before us, they have been used for thousands of years. Thus, to name network’s practice as alternative dispute resolution practices.

The recognition of the issue of power being at the heart of every conflict. Any alternative dispute resolution practice needs to acknowledge this and bring it forth to bear on the process. Thus, the measure of a successful dispute resolution is not in the resolution of the conflict but in the empowerment of the parties along the process towards a mutually gainful of beneficial solution to their conflict.

The facilitators empowering dispute resolution management processes strive for the achievement and preservation of peace with justice among persons, groups organization institutions sectors, communities and countries. They are primarily dedicated to the principle that all parties to a conflict have a right to negotiate and attempt to determine the outcomes of their own conflict. They believe in the importance of this principle as a precondition to the achievement of genuine peace and sustainable development.

The Mediators Network for Sustainable Peace (MedNet) was borne out of two initiatives that were supported by The Asia Foundation (TAF). First, the partnership between the Department of Agrarian Reform (DAR) and the Community Organizers (CO) Multi diversity to venture into the use of mediation as alternative means of resolving agrarian disputes From 1994-1997, training on principled negotiation, mutual gains approach, and interest-based mediation were conducted for DAR personnel, non government organizations, and peoples organizations. The success of the undertaking was evident, some 550 people from various parts of the country were trained, and less agrarian related cases were filed in court. This prompted the partnership between the Department of Environment and Natural Resources (DENR) and the Tanggol-Kalikasan to explore the arena of alternative dispute resolution in environmental conflicts.

Participants to the training of both initiatives have since then linked up with one another, as they worked along in providing training, mediation, and negotiation-coaching. During a sharing and consolidating of learning experiences on dispute resolution at the Caliraya Forum last May 1999, they agreed that the time was rife for the formation of a network of mediators, one that practices the Empowering Dispute Resolution/Management Processes (EDR/MP).

The Network consists of individuals from the government, particularly the Department of Agrarian Reform (DAR) and the Department of Environment and Natural Resources (DENR), as well as from the non-government organizations (NGOs), and the people’s organizations (POs).

The barangay justice system is not part of the judicial system. But the Judiciary recognizes that strengthening the grassroot structure will definitely have positive effects in the administration of justice as it may help unclog court dockets. According to an associate justice of the Supreme Court, it should be the duty of every judge in the trial courts to help strengthen the barangay justice system. The local courts can initiate public education and information programs on how the barangay justice system works and provide opportunities for continuing education for Lupon and Pangkat officials.

Maximizing the potential of the barangay justice system has been limited by lack of information on how it works as well as some inherent structural weaknesses. The community, especially the marginalized sectors are not aware or knowledgeable about the barangay justice system and the functions of the Lupon and Pangkat. There has been no public information and education campaign on how the barangay justice system works.

During the regional consultations, many barangay officials noted some inherent weaknesses of the Lupon and Pangkat. The educational attainment of members are found to be diverse - some have completed college degrees while others have had only a few years of schooling. While educational attainment is not an important criterion as to community standing, respect, impartiality and integrity, it may be easier to create collegial atmosphere if educational gaps are not too wide. Some Lupon and Pangkat members are not aware of their roles, duties and responsibilities, among others. There are limited opportunities for continuing education.

There is a need, therefore to intensify training of members of the Lupon and Pangkat, many of whom lack knowledge on the Barangay Justice Law. The members should be equipped with skills in negotiation, conciliation, conflict management, etc. In addition to traditional training sessions, members of the Lupon and Pangkat may join “lakbay aral” in local courts as well as make cross visits to model barangay justice systems.

Some Lupon and Pangkat members perceive their mode of alternative dispute resolution as adjudicatory and not conciliatory. Hence, some have exercised jurisdiction beyond the territorial bounds of the barangay. Some barangay officials have shown partiality towards certain litigants who are related to them either by consanguinity or affinity (“compadre” culture).

It is perhaps because Lupon and Pangkat members serve without compensation that they are not highly motivated to expeditiously resolve cases referred to them. This non-feasance has caused untoward delay in the amicable settlement of controversies.

There are however “success stories” on the barangay justice system. For example, the Lupong Tagapamayapa in a barangay in Legaspi City was adjudged winner in the Galing Pook Awards. These success stories, however, are not given adequate media coverage.

The Barangay Council for the Protection of Children (BCPC) is now being set up in barangays nationwide. This provides another venue by which community leaders and members are able to participate actively in the delivery of (social) justice especially for children who are exposed to various forms of abuses - trafficking, child labor, prostitution, vagrancy, among others. It is unfortunate that only a small percentage of our barangays nationwide have established their BCPCs. Many of those established have not been active. Lawyers who are residing or working in a particular barangay may serve as a member of the council. This will enable them to share with the local community their knowledge, talents, and skills.