Dear Rotarians:
I bring good and bad news.
First, the good news. In 2004, 79% of the cases that underwent court-annexed mediation were successfully settled. In real terms, this means that of the 7583 cases that were mediated, a compromise agreement was reached in 5899 cases.
This is better than the 2002 figures were a compromise agreement was reached only in 2046 cases of the 2277 cases that were mediated. However, the success rate in 2002: 90%, is better than the 79% in 2004.
This means that mediation is an effective process to resolve disputes.
Now, the bad news. In 2002, there were 810,745 pending cases in court. However, only 5,066 (.9%) were referred to mediation. Of these, only 2277 were mediated, and only 2046 (or .3% of pending cases) were successfully settled.
In 2004, there were about 800,000 pending cases in court. However, only 20,277 (.25%) were referred to mediation. Of these, only 7583 were mediated, and only 5899 (or .74% of pending cases) were successfully settled.
This means that while mediation is effective, it is not widely availed of.
There are reasons for this.
First, because of lack of funds there are few mediation centers in the Philippines and fewer mediators. There is lack of interest to become a mediator because of the very low fee paid a mediator (P500 for a successful mediation and P250 for an unsuccessful one).
Second, somehow many judges do not refer cases to mediation. Even if the mediation project was conceived to help unclog court dockets, many judges hesitate to refer cases to mediation. Some do not believe in its efficacy. Others do not think highly of the mediators.
Third, lawyers do not see the benefit of mediation. On the contrary, they think it will deprive them of income because it will resolve cases immediately.
Fourth, the disputants are not aware of the concept and advantage of mediation. They think it is only another procedure to further delay proceedings.
Fifth, and more importantly, there is need to change attitudes on how to resolve disputes.
Unfortunately, today, the legal profession which is supposed to be a noble profession to improve people's lives, has instead brutalized everyone it touched: clients, judges, lawyers. Law practice is now not about seeking justice or finding reasonable resolutions to conflict. Rather it is about lawyers focusing on destroying their opponents by any means through nasty fights, vicious accusations, twisting the truth.
Thus, observers blame the litigation machine. Although mediation and other alternatives for resolving disputes have gained a foothold in recent years, litigation's slash-and-burn model still dominates the legal world. Yet many lawyers (not to mention clients) feel frustrated by this emotionally and financially costly approach. Litigation's ruinous wake feels especially unsettling in cases where parties will have ongoing relationship - family cases involving children or disputes between business partners. But because lawyers tend to bill by the hour, they have an incentive to keep litigation going.
Then there's the dominant pedagogy in legal education, known as legal formalism, in which law students are trained to ignore messy concepts like justice or morality in favor of applying strict rules and doctrines. Even though lawyers deal with people in serious distress, they get no training or support for integrating emotional intelligence or human values into their practice. Clients begin to look like walking legal problems instead of complex human beings. ("The New Kinder, Gentler Lawyer" by Elaine McArdles, the Boston Globe Magazine).
It is therefore imperative to re-orient legal education so as to change the attitude of future lawyers towards the resolution of disputes - by de-emphasizing litigation and by stressing negotiation and mediation. Lawyers must learn negotiation skills and must be problem solvers instead of war-mongers. They must try to solve disputes amicably, and only if that fails, should they litigate.
For the current practitioners, the orientation may be accomplished through the MCLE Program with the help of the Integrated Bar of the Philippines.
It is only through such attitudinal change can lawyers realize the benefits of negotiation and mediation as effective tools to settle disputes. It is only then that we can really and fully promote the Alternative Modes of Dispute Resolution, such as mediation, in our country for the welfare of our people.
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