Mediation: Reaching Its Potential In Family Law Cases

Hon. Justice Nimfa Cuesta-Vilches

Assistant Court Administrator (ACA)
Supreme Court of the Philippines
Manila

Family law case mediation is a form of alternative dispute resolution in a private

forum before a case is filed in court or a court-annexed one that is discussed in
this article whereby an impartial person, a professional, or a judge in a two-court
system helps parties define issues and have a plan to deal with them. A family
case mediator sits down with people to discuss options and develop proposals to
resolve a dispute. The mediator does not take sides. Every party attends the
process and they make all the decision. Mediation sessions are confidential.

When issues are resolved, a case is no longer heard in court as family mediation
results in a compromise agreement or consent order. But if mediation fails, the
case goes to trial before a regular judge who decides its merits usually without
information as to the matters taken up during mediation.

It is the experience of family mediation professionals that the program works best
when court-based or court-supervised. And when newly adopted, a mediation
mechanism that has a strong court and widespread multidisciplinary support
forestalls initial opposition and dithering. While mediation can be voluntary,
once ordered by the court, it may become mandatory. Common instances when
family mediation is held are: when parties are separating or when parties are
already separated but desire to negotiate own terms of meeting their needs and
interests. The parties thus decide what is best for them. However, in legal
separation cases where the marital bond is not severed, counseling, not
mediation is appropriate.

Among the matters referred for family mediation are custody of minor children
and visitation or access; support as well as matters relating to properties of the
parties. The law, however, does not allow a compromise on status, future
support, ground for legal separation, legitime, jurisdiction, domestic violence and
other crimes.

The parties in family mediation are the following: husband and wife in
declaration of nullity or annulment of marriage or in legal separation cases;
common law partners; former spouses when tackling change in custody and
visitation of minor children or amount of support; new partners; parents;
grandparents; and age-appropriate children as to questions affecting them to
promote their best interests. While children over 7 years of age may choose their
custodial parent, discernment on their part is required.

A family mediator has 40 hours of specialized training and 2 months practicum.

He or she has child and gender perspective, and whose compensation scheme is
determined upon accreditation. Lawyers, former judges, law professors,
psychologists, psychiatrists, religious leaders, or social workers make good family
mediators. A family mediator is usually assigned to a particular case but may be
replaced once trust of the parties is lost.

In attendance during family mediation are the parties; mediator or co-mediator;

lawyers to assist parties as to legalities or to draft a compromise agreement
(lawyer participation is encouraged as to property division or amount of support
but need not be present as regards parenting issues); child development experts;
assigned case worker, service providers for children and families; accountants;
property evaluators; and interpreters. For moral support, the persons allowed in
mediation proceedings are parents; guardians; other relatives with legal standing
to the case; friends, colleagues; counselors; and other support persons.

In family mediation, a male-female co-mediation team where one is a skilled

therapist is quite popular because gender issues are inherent and the participants
are many. Co-mediation is a more creative and productive technique in conflict
resolution where the parties have a sense of balance and feel less intimidated by
their facilitators. This quality of mediation registers a higher rate of success.

Among the attributes of a family mediator are knowledge of child development;

battering cycle; power imbalance among parties; substance abuse;
psychopathology (nature, cause and symptoms of mental and behavioral
conditions); established legal principles and must not be current employees of
protective services for the requisite objectivity. As one might expect, the issues
that come at play during family mediation are varied- substantive (entitlements);
procedural (case studies); relational (marriage and paternity); psychological
(affecting legal capacity as spouse or domestic violence); and in proper cases,
jurisdictional (facts of the case for as long as parties have legal representation).

Mediations are usually held at mediator’s offices, courthouse mediation units or

centers, lawyer’s offices, in a forum generally seen as a sufficiently neutral
ground, or any other place agreed upon by the parties where people feel
comfortable.

Parties may be mediated before they separate or after; before conclusion of an

agreement or after; before litigation; before pre-trial conference; during
litigation; and after litigation particularly to deal with changed situations or to
clarify court orders. Parties may as well choose mediation when they are ready,
are interdependent and can rely on mutual cooperation. Mediation is effective
when there is no other appropriate or accepted structured venue where dialogue
can take place or when parties are not comfortable in confronting each other
without the presence of a neutral person; or when there is a disagreement over
data. When parties are interested in change for the future than about
punishment, revenge or being publicly vindicated, mediation works.

Formal court and rights-based strategies are often less viable options than
mediation for parties to resolve intra-familial concerns for the latter focuses on
interests rather than positions. While mediation is a cost-effective way to clear
up family problems, it does not mean less revenue performance of lawyers.
Mediation, in all forms, is practical for legal practitioners as they have higher
chance of receiving fees than in protracted court trials when parties have
exhausted their finances. Mediation, too, is the way to global legal practice.

Family mediations may be by single session set up where parties expect to meet
and work out a settlement in one session, usually half or full day segment when
legal counsels assist the parties. There can also be sequential negotiations or
series of shorter meetings lasting 2-4 hours duration as arranged by the parties.
The sessions are often followed by the mediator’s summary of the minutes of the
mediation. By and large, mediation usually takes between 2 and 6 sessions.

The expected outcome of family mediation is a written document outlining the

details of the parties’ agreement, with the mediator finalizing it assisted by the
lawyers, the formal deal signed by the parties and thereafter submitted to the
court for approval.

For partial or on-going mediation, the mediator sets out agreements so far made
and the issues that are still open for negotiation. Parties then continue to get
together until a full agreement is reached or mediation itself is terminated.

How to mediate emotion-packed family law cases is always a challenge to the

mediator. In bitter disputes, emotions are important to people than talk. The
family mediator has to be familiar with all emotions- his or hers and those of the
parties. Remember that each party is concerned with own survival. The
mediator thus acknowledges the emotions as rightful, allowing each side to let off
steam, listening and not interrupting until the last word is spoken and not
reacting but managing emotional outbursts. It may prove beneficial to lay down
some rules such as only one party can get angry at one point in time.

Other useful tools recommended in family mediation are the use of symbolic
gestures such as handshake, notes of apology or sympathy, flowers, and gift to
children. Family mediation is dealing with people first, and the problem may be
the people themselves. People put in issue complex matters of relationships,
feelings, trust, comfort, acceptance and rejection. Contending parties often press
on each other’s duties, responsibilities and obligations; compute costs, expenses,
and balances; and then fix schedules and deadlines to meet. When confronted
with the dilemma of whether to still mediate if the parties are so awful, mediators
should, of course, and the question would just be on how to mediate.

Realizing that mediators are also human beings who react, get angry and become
disappointed, good practices may include having an open mind- that couples with
problems are not as of the moment perfectly rational. In relation to this, a family
mediator has to clear communication lines. He or she may not assume that
things are or are not; avoids stereotyping or victim-blaming; and respects values,
gender, levels of education, financial ability, age, culture, religion and even
mood. The use of necessary skills by the family mediator in dealing with the
above factors may yield positive results.

In family mediation, there may be aspects that are not sorted out or there can
only be partial adjudication that is still good given the outcomes. For things that
the mediator cannot attain, it is best, they say, to have a “micro-BATNA” (best
alternative to a negotiated agreement) which is one’s safeguard against a losing
proposition or a poor choice made.

By all accounts, plans and options have to become binders and commitments.
And this is achieved by starting things right, which means that at the beginning
the mediator already has an idea what and how the agreement will look like.
Then there is closure on the issues and problems with the parties satisfied, feeling
fairly-treated, healed, and ready to move forward and even build ties (perhaps for
future mediation).

Lastly, when an agreement occurs as a result of family mediation, it is one that is

not contrary to law, morals, and public policy so that the court approves the same
and orders all parties to comply with the terms and conditions under pain of writ
of execution. And then the parties, without having to go through formal, rigid
and adversarial court battle (actually among equals), have with them the best
decision yet made in their lives.

The Author
Hon. Justice NIMFA CUESTA VILCHES
Assistant Court Administrator
Supreme Court of the Philippines

Assistant Court Administrator (ACA) Nimfa Cuesta Vilches is a graduate of the Ateneo
de Manila University and the Ateneo Law School. After passing the Bar in 1983, she
immediately worked as Attorney II in the Offices of Justices Hermogenes Concepcion, Jr.
and Jose Y. Feria and was later promoted to the post of Attorney III in the Office of
Justice Teodoro Padilla, Supreme Court of the Philippines, Manila, until July 1989 when
she was appointed to the bench. ACA Vilches was a judge for 17 years and was assigned
to various courts in the country.
ACA Vilches earned grants for major studies abroad, among which are: “Evidence”
conducted by the National Judicial Institute Of Canada (NJI), at Kelowna, British
Columbia, Canada, on 23-27 August 2004 sponsored by NJI and the Supreme Court of
the Philippines; “Children’s Rights” at Oxford University, England, supported by the
British Council; “Violence Against Women: Tackling Trafficking” at Hertfordshire,
United Kingdom, sponsored by the British Council and the Supreme Court of the
Philippines; “Evidence and Role of the Judge” at the University of Nevada in Reno,
USA, sponsored by UNICEF; DNA and Forensic Matters at the Home Office, United
Kingdom, arranged by the British Embassy, Manila; Philippines; “The Legal and
Technical Aspects of DNA” extended by the Applied Biosystem in Foster City,
California, USA; “Crimes Against Children” conducted by the US Federal Bureau of
Investigation and the Department of Justice; and “Juvenile Justice”, conducted by the
National Council of Juvenile and Family Court Judges (NCJFCJ) in Houston, Texas,
USA, granted by the Consuelo (Alger) Foundation.

She is a Professorial Lecturer and Member of the Faculty and the Legal Research and
Method Department, Philippine Judicial Academy (PhilJA), Supreme Court, where she
does lectures to judges and other court employees and carries out research work;
Member, Subcommittee on Rules for Family Courts, Committee on Revision of Rules,
Supreme Court to recommend innovations in procedure and in the system; Member of
the Supreme Court Ad Hoc Committee on Justice on Wheels; Member of the Faculty,
Ateneo Law School and recipient of the Chief Justice Ramon Avancena Professorial
Chair in Civil Law for the years 2003-2004; 2004-2005; 2005-2006; and 2006-2007;
Chairperson, Subcommittee On Justice For Children, Council For the Welfare of
Children (CWC), Office of the President of the Philippines, the biggest organization of
government and non-government institutions, where in her free time, she coordinates
inter-agency efforts for the betterment of Filipino children and families; Lecturer for the
University of the Philippines Law Center-Institute of Judicial Administration (UP-IJA)
and UNDP to train Nepal judges and justices on women and children’s concerns and a
lecturer on various topics for its mandatory continuing legal education (MCLE) program
provided to the Integrated Bar of the Philippines (IBP); and Lecturer for the Public
Attorneys Office (PAO) of the Department of Justice thereby updating the knowledge of
lawyers on new laws, rules, and societal issues that affect the legal system. ACA Vilches
also helps train other family court duty-holders for UNICEF-Manila in partnership with
the judiciary and various relevant government agencies. Currently, she is the Resource
Person for the joint Department of Social Welfare and Development (DSWD),
Department of Interior and Local Government (DILG) and the Office of the Court
Administrator (OCA), Supreme Court, in the nationwide orientation-seminars on RA
9344 or the Juvenile Justice and Welfare Act of 2006.

In May 2002, ACA Vilches was chosen as a Member of the Philippine Delegation to the
UN General Assembly Special Session for Children in New York, USA; was a Delegate-
Rapporteur to the 1st Australasian Judicial Forum in Manila in January 2003, and was a
Delegate-Rapporteur, Asia-Europe Experts Meeting in Manila in March 2003. With a
vision of transforming the work of a trial court judge beyond the role of an adversarial
Trier of fact, in August-September 2004, ACA Vilches participated as a member of the
Canadian-Philippine judicial team designated by the Supreme Court of the Philippines
and the National Judicial Institute of Canada in the activity to develop a module on
family law case mediation, a form of alternative dispute resolution (ADR) that can be
performed by the judge himself or herself to have parties arrive at an amicable
settlement and provide in the end healing to the parties in intra-familial controversies.
On 12-23 June 2005, ACA Vilches, on authority of the Supreme Court, participated in the
study tour of the court system, government structure and social services for children in
Sweden on invitation of the Swedish Ombudsman for Children.

As a recognized international speaker, ACA Vilches delivered on plenary session the

topic “Trafficking in Women and Children” and chaired Session 24 on “Child
Trafficking” at the 4th World Congress on Family Law and Children’s Rights at Cape
Town, South Africa, on 20-23 March 2005.

ACA Vilches has written the articles ‘Trafficking In Women and Children”; “Are You
Ready To Be A CASA/GAL Volunteer?”; “DNA And The Courts”; “Making Juvenile
Justice Work”; and “Mediation: Reaching Its Potential In Family Law Cases” which have
been widely published locally and internationally. In 2004, she authored a reader-
friendly book entitled “B.P. 22: FAQs” published by Rex Bookstore to help the general
public know more about the commonly committed violation of that law. And in 1999,
ACA Vilches started a program in the Philippines called “CASA/GAL” composed of
trained community volunteers who advocate and promote the best interests of children
and families in court and thus ensuring their access to justice. Among the earliest
volunteers for children in the court of Judge Vilches are Ms. Maribel Ongpin and Mrs.
Virginia Davide. In 2004, CASA/GAL was voted by UNICEF as one of the ten innovative
initiatives for East Asia and the Pacific.

In February 2004, ACA Vilches was nominated by the Judicial and Bar Council (JBC) for
the post of Associate Justice, Court of Appeals; was a finalist in the Gender Justice
Awards of August 2004; and a co-author of the upcoming Gender Justice Book. She was
adjudged Outstanding Judge, Judicial Excellence Awards of 2006 of the Society for
Judicial Excellence, Supreme Court of the Philippines.

At the Office of the Court Administrator (OCA), Supreme Court, ACA Vilches is Chair of
the Grievance Committee; Performance Evaluation Review Committee; Office of the
Administrative Services; Finance and Management Office; and the proposed Chair of
Committee on Uniforms for Lower Courts and Special Events Committee (to attend to
demise and hospitalization of judges; visits to OCA of foreign dignitaries; and
observance of OCA and Supreme Court anniversaries). She is a Member of the OCA
Selection and Promotion Board.

On 16 March 2007, ACA Vilches, upon invitation of the University of Ottawa, Ottawa,
Canada, will deliver the topic “Making Juvenile Justice Work” at the International
Conference On The Rights Of The Child on 28-30 March 2007, and will attend the
seminar on “Fundamental Issues in Caseflow Management” at Orlando, Florida, USA,
sponsored by the USAID.

And in 1999, ACA Vilches started a program in the Philippines called “CASA/GAL”
composed of trained community volunteers who advocate and promote the best
interests of children. In 2004, CASA/GAL was voted by UNICEF as one of the ten
innovative initiatives for East Asia and the Pacific.

ACA Vilches is married to Salvador C. Vilches, an accredited mediator, Supervisor,

Mentor, Coach, Lecturer and Now as Mediation Supervisor of the Philippine Mediation
Center (PMC), Philippine Judicial Academy (PhilJA) and a consultant to a maritime
school. She has two children – Steve (21 years old) and Nicole (19 years old).