Confronting the challenges of a mediator: personal insights from a Philippine perspective

I have been a mediator for the past 20 years with the Philippine Court of Appeals’ Court-Annexed Mediation programme and for 14 years at the Intellectual Property Office of the Philippines (IPOPHL), finding the experience both gratifying and challenging.

Guiding all mediation activities throughout the country is the Alternative Dispute Resolution Act of 2004 (Republic Act 9285, or the ADR Act). The Philippines became a signatory to the Singapore Convention in 2019, which would make international mediation agreements easily enforceable in the Philippines, but so far the Philippine Congress has not yet ratified it as discussions continue on how it can be aligned with the ADR Act.

The Court of Appeals and the IPOPHL conduct mediation training for would-be mediators that runs for at least two weeks and includes written and/or in-person workshops involving simulation exercises where each participant takes the role of a mediator, a complainant, and a respondent. The workshops are actually fun, since each person assumes different roles, in different situations, and sometimes gets surprised. And there are continuing mediator education programmes for the enhancement of skills and professional development.

As a lawyer representing clients who could be the plaintiff or defendant, and also being assigned as a mediator in the Court of Appeals and the IPOPHL, I need to clear my mind every time to prepare for the role. Preparation is key when representing clients at mediation conferences – not only knowing the facts of the case but, more importantly, the interests of the client, and identifying the BATNA (best alternative to a negotiated agreement). It is also vital when handling cases as a mediator to ensure that I am familiar with the case assigned and can therefore determine any possible conflicts of interest.

Mediation conferences are confidential and the resulting agreement can be kept confidential as well, unless the parties would like to have a judgment or decision issued based on their compromise agreement. Party autonomy is central to mediation.

Below are some examples of challenges I have encountered as a mediator.

An inequality usually results from the number of representatives attending the mediation conference and their resources. This commonly happens in complaints lodged by seafarers and in appeals to the Court of Appeals, for claims of medical benefits. The seafarer comes alone, and more often than not, all three respondents appear: the employer or manning agency, the insurance company, and the medical doctor. This situation becomes trickier when the plaintiff says very little except for the amount they are claiming, and the respondents all want to talk.

Since there is a commonality of issues among the respondents, I ask the respondents to appoint a lead speaker, but the others can intervene to clarify terms. I then give equal time to the plaintiff. To draw out a reticent plaintiff, I ask leading questions where they are forced to provide some narration, which appears to empower them and they then become more open and participatory.

In mediation, the parties themselves are asked to attend the sessions. For intellectual property cases where there are more foreign filers than domestic filers, as is the case in the Philippines, the parties are represented by lawyers, even if the parties are allowed to appear online.

When I get invited to speak on mediation, especially for continuing legal education, I hear good-natured snickers from lawyers who would rather go to trial, which would usually last for months, and even years, on appeal, assuring themselves of steady income for a longer period, considering the Philippine judicial system’s reputation for taking too long to issue decisions. So when I meet lawyers of this type in mediation, I can almost accurately predict that all possible rescheduling or resetting of the sessions would be availed of to stretch the process.

So as not to get sidetracked, I set scheduled activities that they can perform outside the sessions; e.g., getting confirmation from their principals, so they can talk to one another and be ready to report at the next session.

In the beginning, when online mediation was introduced during the pandemic years (2020–22), everyone was apprehensive since it was considered important that the parties see each other face to face so the mediator could observe their demeanour and adjust their style accordingly. The IPOPHL was the first to conduct online mediation, and after several sessions, both the accredited mediators and the parties found that it works as well as the in-person sessions and saves travelling time.

In the case of the Court of Appeals, a pilot programme was set up, which is ongoing. The advantage is that the parties can meet virtually wherever they are located in the Philippines, consisting of about 7,000 islands.

My only problem with online mediation is the lack of a steady internet connection, so occasionally we get disconnected and have to reconnect, and sometimes the momentum built during brainstorming could be lost. On these occasions, I try to make light of the interruption and tell the parties that someone did not pay the electric bills, so we can get back to where we left off.

The purpose of mediation is to arrive at a fair solution to the dispute that is acceptable to both parties. This is made difficult when the complainant, while stating that it is willing to go through the mediation process, insists that its mark is strong, is famous, has goodwill, etc.

I had the occasion to mediate a case where the complainant was saying just that and asked the respondent to amend its mark by changing its trade dress or stylisation of its word mark, or adding words or devices. I also requested the complainant to come up with its own design for the respondent to consider.

The respondent complied with the request and submitted its proposed designs. The complainant did not propose its preferred design and asked for more changes, and this went on many times, until I felt that nothing would really satisfy the complainant. The respondent was showing signs of weariness, and to go on with the mediation would just be a waste of time and resources.

In that situation, I, with the parties, went through the different changes proposed by the respondent once more to find out if any portion would be acceptable to the complainant. Finding none, and with the complainant not providing its own proposal or changes to the respondent’s designs, I terminated the mediation and told the parties that the case would go back to the adjudication officer for a decision.

The proportion of cases that go through mediation at the IPOPHL is about 25%, and WIPO has always cited the Philippines as a model for mediation. There is no doubt of the benefits of mediation aside from decongesting the court’s dockets, such as:

• The parties control the process and result;

• Savings on cost and time;

• Confidentiality; and

• Business relationships can be preserved.

At the Department of Justice, the Office of Alternative Dispute Resolution conducts continuing mediation training for government agencies and local government units through its core group and accredited mediators. The Philippine Judicial Academy, under the Supreme Court, and the IPOPHL provide training for the accreditation or reaccreditation of mediators.