mediation observation

8/12/2019 Mediation Observation

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An Alternative Dispute Resolution Observation

by Roz Lourdiz P. CamachoLl.B. 2-C

Introduction

Going through the process of litigation in courts is a tediousbusiness and could instil apprehension in the person of those whoenter the portals of a courtroom. Countless cases of unforeseentrauma can testify as to how staggering and complex a lawsuit canbe. Aside from the inevitable dread brought about by appearingbefore a judge, humiliation of being in a court stand and proving yourallegations to be right, there is also the burden of having to pay thenecessary fees. Acquiring justice is, after all, not only obtainedthrough papers but through payment of various costs. Such can alsolead to sleepless nights and long periods of waiting uncertainly for afinal verdict. Hence, it is not surprising that, given the chance, theordinary layman would rather choose an easier way out of courtproceedings rather than be sauted in a dish of court costs,inconvenience, anxiety, and, in some instances, squandered time.

Indeed, being a principal participant in any case is no joke. According to Moses Henry Grossman, an American judge, four out offive potential litigants will settle their disputes the first day they cometogether, if you will put the idea of arbitration in their heads.Resolving conflicts can become too tiresome when parties endlesslybutt heads in court rather than come to agreements in a calm andpensive manner. Now, the parties can find relief in being able to availof Alternative Dispute Resolution (ADR) which can alleviate their fearsas well as reduce the charges for coming to a peaceful termination oftheir case.

Having witnessed firsthand the mediation process, I can attestas to how agreeing parties can engage in civil and practicalnegotiations despite their differences and indifferences. However,there are still instances which indicate that ADR is not always apanacea or cure-all for any dispute.


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The Cases

The proceedings that I have observed included suits for estafa,collection of a sum of money and theft. In these cases, the complaintfor estafa ended successfully albeit prolonged due to numerousdisagreements between the parties. On the other hand, the secondmediation for the collection of money went rather smoothly and wasthe epitome of a win-win scenario when the respondent approvedat once of the payment scheme presented to her by the complainant.The last case, however was reset since both parties could not come

up with a definite solution to their issue at hand.

The Mediator

The above-mentioned cases were all handled by the samemediator, a male and the youngest officer in the mediation office.Based on how he dealt with the assortment of parties, one could say

that he has performed the task of structuring communicationbetween the warring sides. The mediator explained to the partiesbeforehand what a mediation proceeding is, what it is not, and theadvantages that it could result to once the parties reach anagreement. He was able to obtain the trust of the parties by talkingto each party separately prior to a joint meeting between them.Because of this personal interaction with the mediator, the individualssubjected to mediation seemed to be candid in giving their own sideof the matter.

Being the central figure in the mediation process, the mediatorcontrolled the tempo of the proceeding and sought common areas ofagreement between the parties in order for them not to head into astalemate. He was ever patient even if one complainant had a tryingattitude. He asked for clarifications whenever something was unclearto him or to one of the parties. There are instances when he wouldgive his own insights such as saying, if it were up to me... or

personally, I suggest that... but never pushes anyone to do exactlyas he says. The mediator also persuades the parties to talk out theirconflicts and even vent their feelings which led to a teary apologyfrom the estafa cases defendant for having dup ed the plaintiff.


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Lastly, the mediator asked the parties to come up withalternative solutions that will most likely be beneficial to or attain thegoals of both sides. Once the parties have made up their minds as to

what would be the best or, if not, the most practical way to solvetheir dilemma, the mediator asks them to put their settlement inwriting so that it would be binding upon both parties.

The Parties

In the first case of estafa, the plaintiff was a nurse applying forwork abroad and the defending party was the owner of a recruitmentagency. The said agency was not a licensed one and the defendantswindled the complainant. The defendant was apologetic and offeredto pay back the amount taken by her, including damages. However,the complainant appeared unmoved and voiced out her disdain of thedefendants acts which led to her suffering. Eventually, the plaintiffwas persuaded by the mediator to forgive the complainant andaccept the offer given to her. The entire proceeding became lengthydue to the plaintiffs whinges and her deportment was mostdisagreeable when she cut off the mediator midway in his talk sayingthat she already knew what he was talking about.

The parties in the second case were quite amiable towards oneanother. They were laughing together and conversing in such a wayas close friends would. The object of this suit was the amount of36,000 Php loaned by a teacher who was unable to pay it whendemand was made by the creditor. The creditor sent a representativein her stead who computed said debt and both parties agreedwithout much ado that the respondent shall pay 2,000 Php permonth for three consecutive years.

The last issue, a suit for theft, was brought against a womanwho was accused of shoplifting. The complainant has already beendetained for four months. An agent came in lieu of the aggrievedparty but said representative said that he was not knowledgeable ofthe options that are given by his principal in such cases and so couldnot decide by himself. All the same, he promised to inform thecomplainant if the accused had any offer. The accused could notprovide for any offer yet but agreed to the mediators advice that shewrite a letter of apology and have it delivered to the complainant.


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In all three cases, the parties were willing to succumb tomediation although some of them were indifferent to the personalcircumstances or feelings of the other party.

The Gaps

There were not so many gaps in the proceedings but it wouldseem that some of the parties are not very punctual when it comesto mediation. There also times when the complainants are indifferentthat they either stall the process by going on about the damagesthey obtained and the relief they vehemently seek. It is vital thatsuch information be known by the mediator. Nevertheless, it is veryimpolite, even in normal conversations, to cut off anyone mid-sentence especially the mediator who was, in the first place, soughtto help out the parties in their endeavours.

The Atmosphere

The room in which the mediations were held was plain andconducive for holding in meetings for the parties. It is notsomewhere familiar to either the complainant or the respondent anddoes not set any home court advantage to either. The atmosphere ofthe place is busy at some corners but the area where the mediatorand parties are seated are free from any disruption, ensuring thatthere is confidentiality and some privacy in their communication. Thesetting is not so formal as the area is not enclosed but the mediatormakes certain that the parties are comfortable before he starts theconciliation.

Personal Observation

As a spectator of the workings in a mediation process, I haveobserved that the mediator is meticulous in obtaining the facts aswell as in gaining the trust and confidence of the parties. Thedocuments needed for the proceedings are prepared early to preventdelay and simple matters are not delved into deeper to preventcomplications.


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There is also no prescribed language or dialect for the partiesto use during mediation. They are free to express themselves in atongue common to them and the mediator acquiesces by talking in a

language that both could understand such as speaking in Filipinowhen one of the parties cannot understand Hiligaynon.

Not only do the parties have the freedom to converse in theirlanguage of choice, they are also allowed to bring with them somecompany to aid them or boost their morale during the proceedings,such as their counsel or a close family member.

Recommendation

Since the goal of ADR is to craft a binding truce betweenconflicting parties, it would be better if there is an application ofcultural or social-spending approaches and not merely formal settingsfor a negotiation. It could help if the environment was more relaxingand kept more private such as holding the mediation in the home ofthe mediator or any other private and comfortable place with thesame goal of reaching an agreement.

The Philippine set-up of ADR can also adhere to the practicesbeing done in the United States as well as Europe wherein the pre-trial stages of the court proceedings are effectively used by judges topersuade parties to mediate and settle their cases. Status hearingshould be done on a regular basis so that the settlement or progressof pending cases is monitored well.

Conclusion

Alternative Dispute Resolution is, without doubt, a vital additionto the serving of justice in the Philippines. It may have its flaws andcannot always be a bed of roses for all parties involved but theprominence of its benefits outweighs whatever detriment it cancause. It may not be the in thing at this time but it will certainly beknown in the near future as the preeminent method of resolvingconflicts without burdening the litigants as well as the courts. TheFilipino people are bound to gain serious legal reform with theutilization of mediation and other alternative dispute resolutionmodes.

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