An advocate’s initiation into mediation-A A +A
Thursday, July 26, 2012
FISH out of the water was how I felt. For as far back as I can remember, I had always been at the trenches at one side or the other, never (except in disputes among family members) sitting on the fence in between. In the classrooms of Lakan Dula Elementary School on Solis Street, at the Ampil Annex of Torres High on Juan Luna, beneath the roofs that covered the basketball of the Ateneo High School in Loyola Heights, Quezon City, in the activity rooms of the College of Liberal Arts and Sciences, as well as in the canteen of the School of Law at Padre Faura, Manila, there were always causes to fight for or fight against, arguments to espouse or rebut; never was neutrality, on issues of importance, an option, ever mindful of Dante Aleghieri’s pronouncement on for whom the hottest places in Hell are reserved.
But at the Court of Appeals, on Wednesday to Friday last week (July 18-20, inclusive), in the course of attending the Specialized Mediation Training: Skills-Building Seminar Workshop for Court of Tax Appeals Mediator-Trainees, I was led to a change of mind, to a sort of conversion, at the very least to openness to the idea of mediation as a means of settling disputes.
The overview of the course that we were taking, our expectations, adult-learners that we are, of the exercise and of one another, and introductions of the participants were facilitated by the Honorable Divina Luz P. Aquino-Simbulan, Presiding Judge of Branch 41 of the Regional Trial Court in San Fernndo, Pampanga. The good judge was to later on handle the meatier parts of the course: (a) Conflict Theory: Nature, Stages, Approaches, Sources and Intervention and the Spectrum of Conflict Resolution in Alternate Dispute Resolution (ADR), and (b) Mediation as Essentially Assisted Negotiation. Very alert and sensitive to the nuances and direction changes in the discussions, she also oversaw the very challenging role playing session in the afternoon of the third day.
Two sessions in the morning of the first day were handled, fittingly, by no less than the acknowledged father of alternate dispute resolution in the Philippines, Prof. Alfredo F. Tadiar. With age and wisdom very manifest in his voice and movement, Prof. Tadiar walked the participants to the Shift From Adjudication (which was the route of the court room) to Multi-Door Justice System, a new paradigm premised on the proposition that justice is achievable, also, through routes other than the courts.
Like approaching Rome, the single destination, through various roads leading to its many gates, the aforesaid change needed, according Prof. Tadiar, Shifting from a Legal to a Problem Solving Mindset.
The distinction between the two approaches is highlighted by the difference between a letter of demand and an invitation to talk, negotiate and settle. Both are a show of hands; but while the first is a fist clenched for conflict, the second is a palm opened for a handshake.
The packed afternoon of the first day ended with Dean Pacifico A. Agabin, showing the participants the way to Writing Compromise Agreements and Comm. Linda L. Malenab-Hornilla explaining the importance of Ethics in Mediation.
The morning of the second day was devoted to a close look at the legal environment in which mediation needs to take place in the proceedings at the Court of Tax Appeals. The Honorable Associate Justice Juanito C. Castañeda gave an exhaustive lecture on the Relevant Internal Revenue and Customs Laws and Peculiarities of Mediation in the Court of Tax Appeals.
In the afternoon, Prof. Tadiar showed how he much abreast he was with the flow of the discussions on the floor. Noticing that the participants were engrossed with that crucial portion of the Interim Guideliness for Implementing Mediation in the Court of Tax Appeals (CTA En Banc Resolution No. 07-2010), namely, the authority of the government representative to offer, negotiate, accept, decide, and enter into a compromise agreement right then and there at the mediation room (without being encumbered by the need to get the approval of his or her principal, Prof. Tadiar giving way to the eruption of views dispensed with the discussion of the rest and zeroed in on encapsulating in clear terms the sentiments of the participants. That demonstrated that, notwithstanding straight as he was, he was not wearing a straight-jacket.
No facilitator could have handled the afternoon subjects of Communication Stills in Negotiation/Mediation and Important Tools in Negotiation/Mediation better than Atty. Rita Linda V. Jimeno. She was at home in communicating to large publics handing out legal advice. For 8 years, she hosed “Saklolo Abogado” at Radio Veritas, and later concurrently at DZXL RMN. She had a public service television show at IBC 13 and later at ABC 5. On television, she hosted “Mom Ko to” for 2 years on ABC 5.
Demonstrating that negotiation and mediation are activities conducted on the ground level, Dr. Fredrick Boholst, a Clinical & Organizational Psychologist in private practice, ended the afternoon of the second day with a stimulating lecture on the Social and Cultural Context in Negotiation/Mediation.
The third day was similar to the threading of a needle. Everything that was imparted to the participants by the very able facilitators during Days 1 and 2 was drawn out in Day 3 in two well crafted role plays. The morning role play was conducted by participants randomly selected; the rest watched the process unfold, as if looking into an acquarium. The afternoon session divided the participants in the three groups, and each group conducted its own role play. The plenary session was an eye-opener: each group addressed the same dispute differently from the others, demonstrating once again, that many roads can indeed be taken to arrive at the same Rome.
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