An Introduction to Mediation

In the Philippines, when two or more persons disagree on a legal matter, they inevitably find themselves in court. The tendency to litigate rather than to settle extrajudicially is best reflected by the perennial clogging of court dockets. The problem with litigation is in its adversarial nature. You walk in as opponents. You walk out either as the winner or the loser.

Over the years, lawyers have been taught that there are other ways of settling differences without slugging it out in court. These methods have been called “alternative dispute resolution” or ADR.

Mediation.

One such alternative is mediation. A mediator is a neutral third party. He does not take sides but patiently listens to both parties with an impartial mind. He then narrows the issues and offers solutions for both parties to agree to. The idea is to come up with a win-win situation so that the parties may come to an amicable agreement. Once an agreement is reached, the parties present it to the court, in which case, it shall become the basis of the court’s decision on the case.

Mediation is useful in resolving family law cases. Oftentimes, former spouses are deadlocked over common issues like child custody, support and property settlement. A skilled mediator can help the parties by listening to them and giving sound advice. It is so much better for both parents, for example, to settle among themselves such matters as who the children’s primary caretaker should be, the other parent’s visitation schedule and how much each must provide for their children. To do this without the court’s help saves the parties time and money as cases are known to drag on for years.

While mediation may have been originally thought of as a way of declogging the judicial system, it has slowly gained acceptance as a way of removing domestic issues out of the combat zone and into a neutral ground. When parties resolve their issues among themselves, they give themselves the chance to negotiate with the use of give-and-take rather than let a third party coercively take from one to give to the other.

Update:  The Supreme Court issued its Rules on Court-Annexed Family Mediation which took effect sometime in July 2010. Under these rules, all issues under the Family Code and other laws in relation to support, custody, visitation, property relations, guardianship of minor child, and other issues which can be subject of a compromise agreement must be referred to a mediator while the main case will be suspended in the meantime.   Read the full text of the Rules here.