COURT ANNEXED MEDIATION (CAM) - MAKING IT WORK THE PHILIPPINE EXPERIENCE

Hon. Ameurfina Melencio Herrera Chancellor, Philippine Judicial Academy

Definition Court-Annexed Mediation, as practiced in the Philippines, is an enhanced pre-trial procedure that involves settling mediatable cases1 filed in court with the assistance of a mediator who has been accredited by the Philippine Supreme Court. The mediator assists party litigants to identify issues and develop proposals to resolve their disputes. Since the installation of the JURIS2 Project in 2003, the process has come to include the Judicial Dispute Resolution (JDR). Mediation has also moved upward from the trial court level to the Appeals Court level. Designation of the Philippine Judicial Academy On October 16, 2001, the Supreme Court of the Philippines designated the Philippine Judicial Academy (PHILJA) as its component unit for court-referred, courtrelated mediation cases and other ADR mechanisms. This was a follow-through to the 1997 directive of the Court to PHILJA to conduct an in-depth examination of our present legal and judicial system for the purpose of upgrading, improving, and reforming it to meet the changes in and challenges of the new millennium. What better mechanism than through Court-Annexed Mediation (CAM) aimed at declogging the heavy dockets of our courts and giving our judges quality time for the rendition of persuasive decisions!

Compliance and Procedure Deliberately and cautiously, the Academy took one step at a time in establishing court-annexed mediation.

A Presentation by Justice Ameurfina A. Melencio Herrera, retired Justice of the Supreme Court, and Chancellor of the Philippine Judicial Academy, at the International Conference and Showcase on Judicial Reforms, Parallel Session C, November 29, 2005, at the Makati Shangri-La, Philippines.
All civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure, except those which by law may not be compromised; Cases covered by the Lupong Tagapamayapa under the Katarungang Pamparangay Law; Civil aspect of quasi-offenses under Title 14 of the Revised Penal Code; Civil aspect of Estafa and Libel cases where damages are sought (A.M. No.04-2-04-SC, dated July 20, 2004, effective August 16, 2004). Justice Reforms Initiatives Support Project in support of the APJR.

2 With a success rate of 85% of the 2nd pilot-testing in 2000, implementation of CAM started in 2001. We have established twenty-nine (29) Mediation Center Units in Metro Manila, Metro Cebu, Metro Davao, and adjacent sites. With the JURIS project started in 2002, we have established two (2) JURIS model court sites in San Fernando, Pampanga, Island of Luzon, and Bacolod City in the Visayan Islands. These Centers are now operational and render daily mediation services in their respective areas. Acceding to requests for the opening of Mediation Centers, we have expanded CAM to Tacloban City in the Visayas, and Cagayan de Oro and General Santos City in Mindanao. The JURIS Project is also opening up new sites in Baguio City, which is the capital of the Cordillera Autonomous Region, and linking up with CAM in Cagayan de Oro for its Judicial Dispute Resolution (JDR) component. PMC Units operate under the control and supervision of PHILJA in coordination with the Office of the Court Administrator, through the Executive Judges. The Mediation Center is run by a Unit Coordinator, an officer-in-charge, and a Daily Supervisor, who are assisted by judicial officials and court personnel. Essentials Inclusion in the Action Plan for Judicial Reforms (APJR) The priority given to ADR by the APJR, which is the legacy of Chief Justice Hilario G. Davide to the Judiciary, contributes greatly to the success of this pioneer endeavor. The Supreme Court and its different units have been most supportive. Development partners lent us all the assistance they could. I would like to make special mention of the US AID and THE ASIA FOUNDATION, which have been mainly responsible for these endeavors, from pilot-testing, to implementation, to expansion, and onward to the elevation of the mediation effort to the Court of Appeals in Manila (Luzon), in Cebu City (Visayas), and in Cagayan de Oro City (Mindanao). Guidance and Support from the Supreme Court The receptiveness to reforms, the guidance and steady support of the Supreme Court have been indispensable factors in making CAM work. Administrative Circulars, Guidelines on procedures to be followed, declaration of Settlement Periods, amendments of the Rules of Court on Legal Fees, all emanated from the Court upon recommendation of the Academy3. The project has now become a
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Supreme Court Issuances re Court-Annexed Mediation

1. 2. Amended Guidelines for the Implementation of Mediation/Conciliation Proceedings in the Pilot Areas of Mandaluyong City and Valenzuela City (November 16. 1999). Administrative Order No. 21-2001 re: Participation in the Amicable Settlement Weeks. Administrative Order NO. 24-2001 re: Inclusion of Additional Participants in the Amicable Settlement Weeks (March 5, 2001). A.M. No. 01-10-5-SC-PHILJA and OCA Circular No. 82-2001 re: Designating the Philippine Judicial Academy as the Component Unit of the Supreme Court of the Court-Referred, Court-Related Mediation Cases and Other Alternative Dispute Resolution Mechanisms, and Establishing the Philippine Mediation Center for the Purpose. OCA Circular No. 2-2002 re Memorandum on Policy Guidelines between OCA and IBP. Administrative Circular No. 20-2002 re Monthly Inventory and Referral of Cases for Mediation

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3 benchmark program of the Supreme Court, through the Philippine Judicial Academy. Court-annexed mediation has been institutionalized. Guideline for Lawyers A significant Guideline contributory to making CAM work was issued by the Supreme Court in 9 March 2004. It requires parties counsel in court-annexed mediation cases, to prepare the client for mediation, participate in the mediation session, assist in the preparation of the Compromise Agreement and provide guidance in compliance with the terms of judgment on a compromise. The guideline was essential because of resistance encountered from the legal profession. The Working Committees The ADR Committee and the Design and Management Committee, both headed by Professor Eduardo de los Angeles former Dean, and now President of the Manuel L. Quezon University, whose avocation is ADR since many years back, and the Committee members, have spearheaded, managed and monitored all efforts. The Academy owes them a debt of gratitude for making CAM work.4 The Court Officials and Personnel The active participation, collaboration, and cooperation of the Honorable Court Administrator, Executive Judges, Presiding Judges, Clerks of Court, Branch Clerks of Court and court personnel designated by Executive Judges have also been instrumental in ensuring the effectiveness of CAM.

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Administrative Memorandum No. 04-1-12-SC re Guidelines for the Implementation of an Enhanced Pre-trial Proceeding Through Conciliation and Neutral Evaluation (January 20, 2004) Administrative Memorandum No. 04-3-05-SC Guidelines for Parties Counsel in Court-Annexed Mediation Cases (March 23, 2004). Administrative Memorandum No. 04-3-15-SC-PHILJA re: 1. Revised Guidelines for the Implementation of Mediation in the Court of Appeals; 2. Implementing Rules and Regulations on Mediation in the Trial Courts; 3. Additional Requisites for Inclusion in Complaints, Petitions and Other Initiatory Pleadings filed in all courts other than the Supreme Court, Court of Appeals, Sandiganbayan and Court of Tax Appeals, of a Determination that Cases are Mediatable; 4. Implementing Rules and Regulations on Medation in the Trial Courts; 5. Re-accreditation of the 179 PHILJA Mediators, effective for a term of two years, retroactive from January 1, 2004 and up to December 31, 2005 (March 24, 2004). Administrative Memorandum No. 04-2-04-SC re: Proposed Revision of Rule 141, Revised Rules of Court (August 16, 2004).

Alternative Dispute Resolution Committee Presiding Officer - Justice Ameurfina A. Melencio Herrera Chair - Dean Eduardo D. de los Angeles Members - Justice Justo P. Torres - Justice Jose C. Vitug - DCA Bernardo T. Ponferrada - DCA Jose P. Perez - Chairman Alfredo T. Tadiar - Dean Pacifico A. Agabin - Dean Eulogia M. Cueva - Comm. Linda L. Malenab Hornilla

Design & Management Committee - Justice Ameurfina A. Melencio Herrera - Dean Eduardo D. de los Angeles - Justice Jose C. Vitug - DCA Bernardo T. Ponferrada - DCA Jose P. Perez - Chairman Alfredo T. Tadiar - Dean Pacifico A. Agabin - Dean Eulogia M. Cueva - Comm. Linda L. Malenab Hornilla - Judge Lucia V. Isnani

4 The Executive Judge directs the judges in areas where PMC units exist. The Mediation Centers rely on the Presiding Judges for the referral of cases to mediation. The court personnel assist in said referral and in the preparation of the inventory of cases, and monthly reports. The Clerk of Court collects and deposits the mediation fees. The Branch Clerk of Court segregates the mediatable cases from the rest. The Clerk-in-charge acts as liaison of the Executive Judge. The Mediation Center This is run by a Unit Coordinator, an officer-in-charge, and a Daily Supervisor. Judicial officials and court personnel assist them. The Mediation Process Making mediation a part of Pre-trial also accounts for making the program work. Upon appearance of the parties during pre-trial in cases covered by mediation, the Judge immediately directs the parties to appear before the Mediation Center unit located in the courthouse. This referral is mandatory. If Mediation succeeds, a Compromise Agreement signed by the parties and counsel is furnished the court. If mediation fails, the case is returned to the court, which shall then set the case for resumption of pre-trial and thereafter, to try and decide the case on its merits in areas not covered by JURIS. The Mediators The effectiveness of court-annexed mediation rests heavily on mediators. We have professional Mediators. They undergo basic training for five days, and an Internship Program for one month under the guidance of mentors. During this period, they handle actual court cases. They are accredited by the Supreme Court. They are officers of the court when in the performance of their functions. They are bound by a Code of Ethical Standards for Mediators. They must be ready to serve pro bono, or at a reduced rate, for the financially disadvantaged in society. Only those accredited by the Court are qualified to mediate in court-annexed mediation. We now have 311 mediators and 216 newly trained mediators. The Mediation Fees These are collected in the trial court and the appellate court levels. In the trial courts, in civil cases, they are collected upon the filing of a complaint and an answer with a mediatable permissive or compulsory counterclaim. In criminal cases, upon the filing of a complaint or information. Fees are also collected in appeals from the 1st level courts to the Regional Trial Courts, and in appeals from the Regional Trial Court to the Court of Appeals or Sandiganbayan. And in the Court of Appeals, upon the filing of a mediatable case, special civil action, comment/answer to the petition and the appellees brief. The Mediation Fund

5 Mediation Fees are collected even in areas where there are no PMC units in order to build up a Mediation Fund. This shall be utilized for the promotion of court-annexed mediation, training of mediators, payment of mediators fees, operating expenses of the PMC units, etc. To ensure access to justice, pauper litigants are exempted from contributing to the Mediation Fund. Also exempted are the Republic of the Philippines, and the provincial, municipal Treasurer or Assessor. The JURIS Project This is the Justice Reforms Initiatives Support Project in support of the APJR. It is a 5-year bilateral project funded by the Canadian International Development Agency (CIDA), with the National Judicial Institute as the Canadian Executing Agency, and with PHILJA as a partner. It is designed to strengthen the use of mediation as an alternative dispute resolution (ADR) through the combined mechanisms of CAM and Judicial Dispute Resolution (JDR). If mediation fails in the Pre-trial stage, the case is brought back to court for the JDR process. The judge becomes a conciliator, mediator, or neutral evaluator. The proceedings remain confidential. If JDR fails, the case goes to the pair Judge for trial in order to preserve confidentiality. A total of thirty-one (31) model courts in two pilot sites have adopted and institutionalized the use of CAM and ADR. PHILJA is strengthening family courts and the family mediation program through this project. The Project has shown considerable success in the first eleven (11) months of implementation and is becoming part of the judicial landscape. The Appeals Court Mediation Project Encouraged by the success of CAM, we started the Appeals Court Mediation Project (ACM) in 2003. It is now institutionalized and mediation is in full swing. Mediation Statistics Court-annexed Mediation (CAM) (as of June 2005) - JURIS Project - CAM Appeals Court Mediation (ACM) (Pilot Testing 2003) Lessons Learned There is need to enlist the cooperation of all stakeholders (judges, lawyers, the public, local governments, litigants) and to work in collaboration with the units, officials and personnel of the judiciary. The organizational structure in place has to be converted into a more permanent one, with a separate budget for the Mediation Centers. Mediators must have proper qualifications and comprehensive training; there should also be continued recruitment and training. 77%

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6 Mediation fees and the fee structure for Mediators are crucial considerations. Proper techniques must be prescribed for evaluation, measuring success, and tracking impact. There is need to integrate the curriculum for CAM, JURIS, and ACM programs. Manuals should be prepared for the guidance of Mediators and all stakeholders. Systems, operations, and procedures should be improved. A data collection system should be designed that will track various performance indicators such as decreased dockets. An independent evaluation is best conduced that will assess the impact of mediation on the speed of dispute resolution, costs of litigation, and quality of dispute resolution services. Submission of reports, including financial reports, in prescribed forms should be submitted for proper tracking and improvement of processes.

Planning for the Future Our blue-print of action includes the opening up of additional sites all over the country with a target of at least one Mediation Center Unit in each of the thirteen (13) judicial regions. We will have to strengthen the organizational structure of the Philippine Mediation Center and all its Units nationwide. We will have to sustain the expansion of the program. We will have to determine the sufficiency and viability of the fees that are now being collected under the provision of Rule 141 of the Rules of Court. We will need legislation that will institutionalize Mediation Centers and provide them with their own budget. Until we have that budget, we will have to ask for the indulgence of our development partners under the continued Action Plan for Judicial Reforms. We will have to arrive at the proper and reasonable fees to be paid our Courtannexed Mediators. We will enhance Family Mediation. We will expand the cases to be covered by Mediation. Conclusion This then is how we have made Court-annexed mediation work and how we prepare to make it work in the Philippines, with faithful dedication to the effort, with firm belief in its potential to reduce the backlog of the courts, as its instrumental value, and to empower our people to settle their own disputes, as its intrinsic value. Court-annexed mediation is hardly a panacea for the resolution of all disputes, but it provides an alternative venue. Settlement can actually happen within ones lifetime. Intergenerational litigation would hopefully, be a thing of the past. It was our hero, Jose P. Rizal who commented on cases that last an eternity handed down from fathers to sons and grandsons.

7 The Philippine Judicial Academy, as the component unit for Mediation of the Supreme Court, is committed to make Court-annexed mediation work.