Non-Binding Methods of Dispute Resolution Journal # 1 Whats the fuss about?

I must admit I know very little of ADR and what I do know is very limited to Philippine jurisdiction. And so I came to MU with anticipation of learning so muchperhaps even more than what I originally expected to gain from the LLM program. It is very interesting for me to know then that, in this jurisdiction, there is a raging debate between the use of judicial process, i.e. litigation, and ADR in resolving disputes. It is interesting for me because despite our efforts, the Philippines had not gone very far in terms of developing the substantive and procedural groundwork for institutionalizing ADR in the country; and yet, I realized, that despite our very young ADR culture, the Philippine Supreme Court as well as the Philippine Legislature had gone to great lengths to explicitly make ADR process part of law and policy, in stark contrast to the informal use of ADR in this jurisdiction. The Philippine Local Government Code, a national law applicable to all units of local government, mandates that before a complaint1 may be filed in the courts, the parties must first meet before the lupong tagapamayapa (I loosely translate this word as committee of the peace, composed of 10 to 20 barangay or county officials, from among whom the parties to the dispute will choose 3 members who will be the panel of mediators or

Generally, all cases are subject to mediation except: (a) Where one party is the government, or any subdivision or instrumentality thereof; (b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (P5, 000.00);(d) Offenses where there is no private offended party; (e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon xx. (Section 408, Local Government Code)

pangkat ng tagapagkasundo). If the parties fail to settle, the panel will then issue a certification to the effect that the parties have complied with the mandatory mediation but failed to reach a settlement. Without this certification, a case may be considered prematurely filed and subject to dismissal without prejudice. In fact, even our own rules of court2 provides that: The court shall consider the possibility of an amicable settlement or submission to alternative modes of dispute resolution. However, I am only too aware that more often, parties simply go through the motion of mediating only to get the certification so they can go to trial. On this score, the parties (more so the lawyers that represent them) have miserably failed to appreciate why ADR was in the first placed institutionalized. And on this point, I appreciate the debate that rages here in America, if only to present to us that because the option to settle disputes outside the formal processes of the courts was the choice of the parties, and not mandated by a law or imposed by the courts (as in the Philippines court-annexed mediation), the option is more meaningful and the parties are thus more willing to find an integrative solution.3 The debate as a good exercise notwithstanding, I believe that the opposition to ADR overlooks the simple fact that at the end of the day, the choice (at least in this jurisdiction) is left to the parties- that parties need not go through the perfunctory motion of mediating only to later on go to court. I especially take note of the commentary of Mr. Owen M. Fiss, in is article Against Settlement, that: the dispute-resolution story makes settlement appear as perfect substitute for judgment by trivializing the remedial dimensions of a lawsuit, and also by reducing the

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Rule 18 section 2a, Philippine Revised Rules of Court Dean G. Pruitt, Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement, 3rd Ed., p. 16

social function of the lawsuit to one of resolving private disputes xx.4 What great social commentary can we derive from a dispute between neighbors whose dog ruined the flowerbed of another? Or when a debtors check bounced and the creditor sues for payment? Why can the parties not settle, after cooler heads have prevailed, without invoking court processes or the values embodied in authoritative texts such as the constitution and statutes? I see no irreconcilability between litigation/formal court

processes co-existing with ADR. As pointed out in class, critics of ADR seem to lump all disputes as of the same nature across the board. They are not. There are simple disputes and there are complex ones. And I agree that when parties understand the nature of their dispute, they can choose and avail of the best process that will resolve their conflict. 5 It would be foolish to dismiss ADR as something that trivializes; after all, it offers an option. And I would even go so far as to say that the existence of both court and ADR processes underscores the fact that here in America freedom of choice prevails in all areas of life- even in the choice of how to resolve disputes.

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Riskin, et.al., Dispute Resolution and Lawyers, 4th Ed., p. 25 Id at 21