The Assessment included an interesting table on ‘Case Backlog and Clearance Rates For 2005’ sourced from the Project Management Office of the Supreme Court.
Note that the ‘Case Inflows’ or new cases filed with our courts in 2005 totalled 462,167! Total pending cases in 2004 and 2005 were 808,830 and 785,395, respectively. With a population of 85 million, this means that our litigation ratio per capita is one pending case per 106 people. (Or is it one case per 53 people since there are at least two persons or parties to a case?) Anyway you look at the data, there are just too many cases pending and too many cases being filed every year. It’s no small wonder then that our courts dockets are super clogged!
Knowing what we know, what can we do to declog our courts? The JRI Assessment has a number of recommendations or proposals to achieve this end. However, I believe that the proposals do not address the issue at its roots. I believe that, at the bottom, the problem and the solution start at the law schools which tend to foster and encourage a culture of litigation. Let me explain my theory.
If one will examine the current curricula of law schools, one would immediately notice the heavy bias on litigation subjects. There are approximately 22 units on litigation or remedial law, i.e., civil procedure, criminal procedure, special proceedings, evidence, trial technique and moot court. The practical training in law school is on litigation, i.e., moot court and trial technique. Even the legal aid programs or practicum for law students are centered on court litigation. Even in the Bar Examinations, remedial law or litigation procedure has the greatest weight. Thus, our law schools are primarily training law students to become litigators.
If medical schools will train medical students primarily to become surgeons, then more likely than not solutions to medical problems will invariably be surgical. Our law schools are churning out court gladiators!
In recent years, some law schools have offered courses on Alternative Dispute Resolution (ADR). Some courses are limited to Arbitration; some on both Mediation and Arbitration; and some even cover Negotiations. However, these ADR courses are not part of the standard curriculum but are offered merely as electives. More importantly, these ADR courses are largely theoretical as there is no practicum or practical exercises. Just like moot court and trial technique in litigation, practicum and practical exercises are essential to learn the skill and art of negotiation, mediation and arbitration.
But more than teaching law students the legal knowledge and skill on ADR, it is more important to teach and train law students on what their principal role should be, i.e., how to prevent disputes. Focus should be on ‘preventive law’ rather than on ‘remedial law’. There should be a conscious effort to change the legal ‘mind set’, i.e., the lawyers’ obligation to their client is, first and foremost, to avoid disputes. Secondly, if a dispute is unavoidable, the next skill that should be imparted is how to diffuse and solve the dispute amicably through ADR without going to litigation. Lastly, just like surgery, litigation should be the last resort.
I believe that, as a first step, an ADR course should be mandatory for all law students and should be taught in all law schools with practical exercises and a practicum. Moreover, the underlying philosophy in teaching ADR should be clear – to declog court dockets and to create a new paradigm shift in the mindset of new lawyers.
What is the quickest way to ensure that ADR is taught in all law schools? The answer is obvious – get the Supreme Court to include ADR as part of the law curriculum and the Bar Examinations!