Public Administration in the Judiciary: The Benefits of Mediation

(April 23-30, 2007)
By Judge Rafael Crescencio Tan Jr.

Judge Rafael Crescencio Tan Jr.

It was my participation in the online seminar on New Public Management (NPM) from 9 February - 9 March 2007 which became the basis for an invitation to continue discussions on “New Public Management: Lean State, Lean Government” at Theodor-Heuss Akademie, Gummersbach, Germany from April 23 - 30 April 2007.

The philosophy behind New Public Management (NPM) is as follows:

• Management culture that emphasizes the centrality of the “customer”
• Transparency about resource allocation and results
• Organization that promotes decentralized control through a wide variety of alternative service delivery mechanism
• NPM represents the idea of a cascading chain of contracts leading to a single principal who is interested in getting better results within a sector portfolio over which he/she has significant authority
• NPM is the attempt to transfer management instruments from the private sector in a modified way in the public administration

In learning about this philosophy in Germany, I was surprised to know that the Supreme Court of the Philippines had already adopted some NPM concepts through its Action Program for Judicial Reform (APJR) program.

Public administration includes the effective and efficient administration of justice. However, in the Philippines, the judicial branch of government has a very strong constitutional infrastructure that suffers from dysfunctions in its external and internal environment. This has affected its independence, competence, effectiveness and efficiency. These dysfunctions also diminish the judiciary's accessibility to the poor and marginalized sectors of society. Moreover, there has been a widespread perception of corruption in the judiciary.

Thus in response to this, the judiciary embarked on the APJR. Designed during the incumbency of former Chief Justice Hilario Davide Jr., it aims to help eradicate and manage the ACID problem: limited access to justice for the poor, corruption, incompetence, and delay in the delivery of quality judgments. APJR’s six goals are: delivery of speedy and fair dispensation of justice to all; juridical autonomy and independence from political interference; improved access to judicial and legal services; improved quality of external inputs in the judicial process; efficient, effective and continuously improving judicial institutions; and a judiciary that conducts its business with dignity, integrity, accountability and transparency.

Following this movement toward reform, the legislature (RA No. 9285) enacted the Alternative Dispute Resolution Act (ADR) in 2004 which seeks to institutionalize the use of an alternative dispute resolution system in the country by establishing an office for it. This law is aimed at providing a simplified and inexpensive procedure for the speedy disposition of cases. At present however, the use of such a system has not yet been fully utilized and understood by the general populace. It does not also help that thus far only key major cities nationwide have institutions or agencies judicially accredited as offering ADR services. Consequently, this is an area of interest and relevance for the province of Negros Oriental where there is no existing mechanism or duly-accredited institution which can provide ADR services.

Mediation

Under RA 9285, there are four main alternative modes for settling disputes: arbitration, mediation, mini-trial and early neutral evaluation. As mediation is one of the more popular modes of ADR, its benefits can only encourage, promote and support the practice of public administration in the Philippines. Mediation is further subdivided into two parts: the Court-Annexed Mediation (CAM) and the Court-Referred Mediation (CRM). The former refers to any mediation process conducted under the auspices of the court after it has acquired jurisdiction over the dispute. The latter refers to mediation which is ordered by the court to be conducted in accordance with an agreement by the parties when an action is prematurely commenced in violation of such an agreement.

The Supreme Court (SC) has designated the CAM, the CRM as well as other mediation processes to the Philippine Judicial Academy (PHILJA) for institutionalization and implementation. In turn, PHILJA has recommended the accreditation of the Philippine Mediation Center to exclusively handle court-related mediation services.

There are less than 40 duly-accredited mediation centers nationwide at present, mostly located in key cities like Metro Manila, Metro Davao, Metro Cebu, Baguio, Bacolod, Cagayan de Oro, Tacloban and General Santos. Consequently, it would be of great benefit and service if a mediation center can be established in the capital city of Dumaguete to serve the needs of the province of Negros Oriental. At present, if the Negros Oriental courts certify the case for CAM, the lawyers or the parties have to either travel to Bacolod City on the other side of the island or to Cebu City on a nearby island.

A Mediation Center in Dumaguete City

Putting up a mediation center in Dumaguete City is logistically feasible. The center can be physically accommodated in the relatively new hall of justice. Recruiting competent mediators with the proper qualifications and experience is not a problem as the Divinity School at Silliman University already has an existing Justice and Peace Center (JPC) with a training pool adept at alternative conflict resolution strategies. The JPC can be tapped to help find individuals from among its roster of trainers or previous workshop participants who would be willing to undergo the required basic five day training course and one month internship program in order to be accredited by the SC as a mediator. In addition, it has a Dr. Jovito Salonga Center for Law and Development which can also be tapped for the training of mediators.

Moreover, a duly accredited mediation center will only have minimal operational costs as it only needs an inviting but neutral office with basic office furniture, as well as a skeleton staff comprised of a unit coordinator, an officer-in-charge and a daily supervisor. Seeing that the establishment of the mediation center is a beneficial service for the general public, the judiciary can tap the city and provincial governments to help shoulder its operational budget.

Mediation Center Benefits

There are four primary benefits to be derived from the setting up of a mediation center in Dumaguete City.

First, mediation is an effective process for settling disputes. According to PHILJA data circa 2005, roughly 85 percent of cases referred for CAM had already reached settlement. Surveys conducted after mediation sessions reveal a high level of satisfaction among disputing parties. As a result, close to 100 percent comply with agreements reached in mediation. Thus, the resolution of a case through mediation helps unclog court dockets — fostering the legal mandate for the speedy disposition of cases.

Second, mediation is a faster mode of resolving disputes where oftentimes, cases reach settlement in only one - two sessions. The enormous time and effort expended in litigation are thus avoided.

Third, mediation is a cost-saving mechanism for the parties involved in a dispute. Unlike rigorous court proceedings, mediation is quick and devoid of legal intricacies. Moreover, in the event that a mediation center will be established in Dumaguete City to serve the entire province, the parties in a dispute do not have to incur expenses in traveling to the nearest mediation center or pay for the cost of bringing in an accredited mediator to the city.

Finally, as the process addresses deep-rooted sources of misunderstanding, mediation is a proven way to restore relationships long torn by conflict.