Mediation, as a general rule, is simple and inexpensive process, and highly advised by the judicial authorities to clear their dockets. To some degree, I do agree. Mediation is also the fastest among the alternative modes of settling disputes for the right case, in a suitable place, or proper parties.
Why for the right case?
Mediation has different consequences to different cases such as criminal or civil cases.
In the Philippines, the Rules provides that “the civil aspect of all criminal complaints for Simple Theft, Qualified Theft, Estafa, and Criminal Negligence resulting in damage to property (all under the Revised Penal Code) and for violations of the Bouncing Checks Law (Batas Pambansa 22) involving an amount not exceeding P200,000 shall be referred to mandatory mediation. If the amount involved in a covered complaint exceeds P200,000, the provisions on voluntary mediation shall apply. Parties who opt to submit a complaint to voluntary mediation may do so not later than the submission by respondent/s of the counter-affidavit and shall sign an Agreement to Mediate.”
On the other hand, mediation is also a matter of right for civil cases in the Philippines, but must be invoked in court.
Why to a some degree and in a suitable place and parties?
This boils down to culture and the people. It depends if they can be trusted or not. This comes the tricky part.
In some places, sleazy litigants use mediation, since it is highly advised by the judge who only wants the best for the parties, as a means to prolong the case. I handled a case whereby the opposing party just vanished after signing the settlement agreement. Until now, we are still searching for them. For this reason, the parties are now in limbo and still waiting for the other party to comply with their agreement. Until when? I don’t know as my clients are willing to comply with their agreement, but the third party wants the other party who is in hiding to comply first. Now, it seems that there is a deadlock as the third party (bank) is not going after the other party who is liable for a crime and now in hiding.
After mediation, it depends if it is authorized by the judge or not. If it is authorized, the settlement agreement shall become the judgment of the court which requires order of execution of judgement. If it is not ordered or facilitated by the judge, the settlement agreement which is covered by obligations and contracts, requires another cause of action if the parties fail to comply with the agreement.
Most of the time, mediation is easy. However, in this process, the enforcement or execution is the most difficult part, but the most important stage in settling disputes. This is also observed in the international arena which is even more complicated and requires the expertise of a lawyer who is specialized in Private International Law and their local counterparts.
Winning the case or getting a favorable decision or agreement is different from being able to execute, or enforce judgment, or agreement. These situations are not one and the same. They require different legal remedies and sometimes, different lawyers.
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