ROLLYN DEE D.

PIOCOS ADR 02-04-19

The Article Collaborative Law and the Rules on Court-Annexed Family Mediation
by Patrick H. M. Wiedmer talks about the the most commonly-used Alternative Dispute
Resolution (ADR) method, the court-annexed mediation. It discusses the disadvantages
of this form as it applies specifically to family disputes. It also entails another form of ADR,
the collaborative law approach, by elaborating on its pros and cons and the possibility of
collaborative law becoming another standard of ADR for local family law cases in addition
to mediation.
Court-Annexed Mediation is known as the most commonly-used ADR here in the
Philippines. It has become the standard means by which the courts require amicable
settlement from the parties in Family law cases. It is the Supreme Court which issued
the Rules on Court-Annexed Family Mediation (RCAFM) and the Code of Ethical
Standards for mediators on 2010. RCAFM specifically applies to all issues under the
Family Code and other laws in relation to custody, support, visitation, property relations,
guardianship of a minor child; settlement of estates and other issues which can be
subject of compromise agreement.
The disadvantages mentioned of the Court-Annexed Mediation are the neutrality
of the mediator; and the qualifications of the mediator in which both cannot always be
guaranteed. It could happen that when one of the parties in mediation, who is
unassisted by a counsel, is less effective than the other in negotiating and due to the
neutral mediator’s failure to recognize such situation, a settlement may be reached and
thus, it would be disadvantageous to one party. Had they pursue litigation, it could have
protected the rights of the disadvantaged party through his or her counsel. It is not
required that the mediator be a lawyer. In foreign jurisdictions, there is an issue about
the situations of unauthorized practice of law by the non-lawyer mediators, which is
considered as one of disadvantages of mediation.
Stuart Webb pioneered “Collaboration Law” which stemmed from the idea: to
formulate a new type of ADR that puts more pressure on parties and their counsel to
agree to an out-of-court agreement. One of the key features of collaborative law is the
disqualification agreement that prohibits a counsel from continuing as such if the
negotiations fail and litigation is required in the next step. This is an incentive for the
lawyer to facilitate the negotiation in good faith. There is also four-way meetings where
the parties negotiate face-to-face. In here, the meetings may begin immediately if the
parties desire, at a mutually agreed pace, unlike in CAM where the parties have to wait
for the court to dictate when to begin negotiations.
Applying now this Collaborative Law, it could be good for family disputes that are
highly sensitive in nature. Couples are given the chance to settle at the earliest possible
stage, even without court order or mandate. Undeniably, this Collaboration Law if
permitted by the Supreme Court could aid the Court in ensuring the speedy disposition of
family law litigation.