Settling disputes thru creative solutions

It happens much too often: residents of barangays fighting (sometimes to the death) over a negligibly-sized piece of land, usurped parking space, careless remarks about one’s looks, or with a cantankerous neighbor habitually looking for trouble. Thanks to a justice system called Katarungang Pambarangay, passed as PD 1508 and revised under R.A. 7160,  such disputes are settled by a pacification committee or a Lupon Tagapamayapa to effect extrajudicial settlement of minor cases and bring opposing parties together and effect amicable settlement of differences. The system is aimed at reducing the load of the lower courts.

The principal author of the Katarungang Pambarangay Law was the late Alfredo F. Tadiar, best known as “the Father of Alternative Dispute Resolution” in the Philippines. His serious commitment to the delivery of social justice through creative dispute settlement rewarded him the distinct honor and privilege of serving as chair of the Alternative Dispute Resolution (ADR) Department of the Supreme Court Philippine Judicial Academy from 2004-2015.

Aside from settling minor issues among barangay residents which could blow up unattended, Alternative Dispute Resolution (ADR) is applied to reaching amicable settlement of disputes among higher level parties such as multinational corporations and employer-employee relations. A lecture (“Aligning Judicial Remedies with Alternative Dispute Resolution Mechanisms: Solving Problems in Diverse Communities”) delivered by Lawyer Golda S. Benjamin at the Silliman University College of Law last week explained the need to shatter some paradigms unconsciously perpetuated by those who practice law and given the privilege and burden of solving society’s problems. The Distinguished Persons Public Lecture Series 2017 was sponsored by PROCESS, a non-profit, non-government organization in honor and in memory of Professor Tadiar.

Attorney Benjamin quoted Professor Tadiar who once wrote: “Unsuitability of judicial proceedings for everyday interpersonal disputes relates to the nature of the judicial process as essentially punitive and backward looking. It is simply concerned with the issue of ‘who did what to whom’ and not to the why and wherefore. Only the symptoms are recognized but not the cause of the malady.”

In accordance with Tadiar’s declaration, what Atty. Benjamin would like changed is the “What-should-I-do-attorney?” paradigm. She said there is an ever-pervasive obsession of lawyers to be addressed as “ ATTY” and pompously correct clerks when they address them as Sir/Madam. “This paradigm often makes us forget that most of the time, clients know what they want to happen in a dispute and often, they already have suggested solutions. However, clients do not always have the confidence to lay down their proposed solutions because they always feel that the lawyer would know the better solution.”

For example, Attorney Benjamin spoke about a court-annexed mediation case she handled, in which her client was sued by a close friend demanding payment of a debt. When she asked the creditor why she was suing her friend who was willing to pay her debt, the creditor said it was her lawyer who insisted that they go to court, despite Attorney Benjamin’s letters asking for a meeting to settle the dispute.

Lawyers need to be trained not to sacrifice creativity before the “altar of the law.” The strict devotion to the law and the contract “makes us forget other ways of solving problems apart from going to the courts. There’s always mediation, public campaigning, and finding allies who can help bring all parties to the table.”

For example, a case she handled involved settling the price of bananas between farmers and an exporting company. Instead of going to the courts where Benjamin’s client farmers would have possibly lost, they employed many strategies, reaching out to the company with a clear and thorough study of the prices of bananas in the area, presented world prices, and asked government officials to help bring parties to the table. At mediation the lawyers were physically not seated at the negotiation table. The farmers were negotiating with the company managers, also not lawyers. They settled at a price, with clear repercussions for failure to deliver contractual volume. “If we insisted on fighting in court, violence would have erupted in the community, parties would have been stuck in litigation for many years, and farmers’ debts would have grown to insurmountable levels. Social justice would have died before the altar of the law.”

The third paradigm shift should be advancing positions. Despite years of lectures and mandatory continuing legal education, lawyers begin mediation with the question, “So what’s your offer?” This very seldom works, said Benjamin. “First parties need to establish shared goals. It creates an atmosphere that encourages participants to work together to find solutions for their underlying interests… I agree with Professor Tadiar. We need to re-orient law education to focus on preventive lawyering – avoiding disputes by contributing creative solutions to address clients’ interests instead of fighting to the death to defend clients’ positions.”

Philippine law, said Attorney Benjamin, “is already aligned with alternative dispute resolution mechanisms. Even before other countries even thought of allowing interim measures of protection remedies to be granted by courts in support of mediation or arbitration, our law already allowed for it. Our Katarungang Pambarangay law is often discussed in international conferences on community-based dispute resolution mechanisms. Professor Tadiar’s legacy is one that is marked by a clear vision to make law and lawyers responsive to the demands and duty of advancing and promoting social justice.”

Judge Tadiar founded PROCESS (short for Participatory Research, Organization of Communication and Education towards the Struggle for Self-Reliance). His wife, Dr. Florence Macagba Tadiar, now PROCESS board of trustees president, described the independent non-government organization as aimed at “animating the formation of strong, autonomous people’s organizations and building up their capabilities for participatory and self-reliant development.”

Present at the memorial lecture were Silliman president Ben Malayang III, also chair of the PROCESS board of trustees, law dean Atty. Sheila Catacutan-Besario, Atty. Jose Riodil D. Montebon, Atty. Mikhail Lee Maxino, and law student Jeli Cubelo. Four of the Tadiar children present were clearly touched by their father’s vision – Aisha Tadiar, Dr. Neferti Xina M. Tadiar, Bonifacio Carlo M. Tadiar and  Thea Tadiar, and granddaughter Luna.

Dr. Neferti Tadiar, a professor at Columbia University, Barnard College, spoke with awe and wonder about her father’s life and work. “My father’s unwavering belief, which he held and which he allowed to guide his actions and projects all throughout his life, until his very last days was that, in his own words, ‘a rational and progressive law enforcement by officials embued with a sense of their proper role functions in the maintenance of the legal order, and armed with a sharpened awareness of the long range implications of their actions, will contribute greatly towards providing a solution to the nation’s ills.’”

For her father, Neferti said, “law enforcement was not simply a tool for punishment, but rather an educative instrument. Indeed, he saw in the everyday behavior of people everywhere, a plethora of examples for further thought and reflection, that is, as educative contexts for us to critically examine the very principles that govern our collective behavior in order that we might seek and realize the improvement of our collective life.”

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