Mediation as a way of life - CHASING THE WIND by Felipe B. Miranda

Many contentious disputes arise in societies where citizens are not committed to habitually observing the rule of law and instead treat it as a matter of personal convenience. When one feels like it, one stops before a red light. When the fancy catches someone, he or she dips into public funds. And when the opportunity presents itself, the rich – much like the poor – think nothing of illegally taking over somebody else’s property.

In such societies, the formal institutions for resolving conflict and settling disputes suffer gross overloading. Social stress builds up as contending parties try to settle their differences by whatever available means and – lacking appropriate mechanisms for resolving these differences fast enough – greater instability in the social system results.

In the Philippines, far too many cases clog the court dockets at all levels of the judiciary. Civil cases in particular drag on for decades, with the original parties having died and their children and grandchildren having to pursue elusive justice across several generations. Criminal cases may not take as long to be resolved but still take enough time to warrant the maxim, "Justice delayed is justice denied."

In addition to failed socialization into the idea and practice of the rule of law, other reasons have been explored to explain the massive load of the judicial system in the Philippines. Ineptness and corruption among many of the judicial authorities, intervention in the judicial process by powerful and influential political actors, incompetence and lack of ethics among the lawyers, widespread legal ignorance among the citizenry, inadequacy of public funds for running a decent judicial establishment have all been cited at one time or another to explain the sorry state of the machinery for dispensing justice in the Philippines.

Still unable to address the root causes of inefficiency and corruption in the judiciary, the Philippine Supreme Court has nevertheless started to do something about the problem. In addition to efforts to document the nature and extent of its crucial problems in judicial administration, it has also been trying to actively facilitate the rate of judicial disposition by resorting to court-supervised but largely exrajudicial means of dispute settlement.

Pending cases amenable to mediation are given a boost with the courts requiring the parties involved to meet with a trained mediator to find out whether they could forge a compromise agreement. During this mediation session, nothing said by the parties, no information gained in whatever way, may be later used by either party should the mediation fail and the regular trial of the case is resumed. For the period during which mediation might be pursued, all court hearings of the case are suspended.

If the parties can reach a settlement during this mediation session, the mediator will help prepare with their respective counsels the formal document whose provisions will bind both parties. This document and its provisions will also guide the judge in his final action formally terminating the case.

During the mediation, the mediator’s own sense of fairness and well developed skills at interpersonal define whether the mediation will succeed or not. Without passing judgment on whether the plaintiff’s or the defendant’s side of the case is the more truthful or the better one, the mediator tries to activate in both parties a basic sense of concern or sympathy for the other person – a sense that might have been much impaired by feelings of bitterness due to imagined or real hurt inflicted by the other party.

Most of the time, the mediator has to be a consummate psychologist – not necessarily a psychiatrist – knowing precisely when to allow a person to unburden himself of his anger or his pain and when to check the same person who might unwittingly cross the threshold of decent public discourse or personal exposure.

If the mediator is able to establish himself or herself as a fair, caring person, then the litigants find it easier to entertain other more rational considerations for reaching a compromise. The parties are more vulnerable to reflecting on the inordinately long process of a judicial trial, the costliness of legal and other incidental fees, the hassle of court appearances and even the sobering prospects of not securing what they had gone to court for at the end of a long and costly trial.

And so, with excellent mediating, what started as apparently irreconcilable interests move closer to each other and soon get close enough to reach to each other. Mediation in these circumstances is a natural mode of conflict defusion among basically decent Filipinos.

Given enough recognition and more substantial institutional support, mediators can help tremendously in decreasing the huge backlog of cases pending before the courts. Furthermore, by making the workload of judges more bearable, mediators can help the latter focus on the truly more demanding, sophisticated court cases. Less harried, more focused, presumably competent judges will make better decisions and the overall quality of administered justice would of course improve.

Mediation is an inspired idea. To date, even with less than ideal resource support, it is already proving its great worth.

Like any good system, it can of course be tremendously improved.

Among the first improvements – in acknowledgment of the critical contributions competent and dedicated mediators can make to judicial administration in this country – is to make mediators not simply uncompensated amicus curiae volunteers, providing critical public service pro bono. Surely, they deserve to be justly compensated, especially those mediators whose own material conditions may not permit donating their public service indefinitely.

Also, with just compensation, mediators can hew better to a code of conduct currently barring them from allowing even appreciate – erstwhile hostile – litigants to treat them to even a simple lunch after a mediation session has successfully concluded.