Why Litigation is Not The Way


This was the question asked by a lecturer in my last Mandatory Continuing Legal Education at the UP Law Center.

True to form, many answered 3 years, 5 years, with some mentioning 7 years. I answered 5 years based on experience.

How long does litigation last on average until finality before the Supreme Court?

Many answered 10 years, 15 years, and some 20 years. I answered 15 years.

The lecturer then revealed that, based on a study conducted by no less than the Supreme Court, the average life span of a case under litigation at the trial level is 12-14 years (I cannot exactly recall which of the two numbers was said), while that which reach finality before the Supreme Court is at 25 years.

The numbers were surprising as evidenced by the silence that echoed in the Malcolm Theater having learned of the actual numbers so to speak. And, they are so far off from the conventional wisdom.

To think, we are talking about averages.

This means the case could be tried and litigated longer than the averages of 12-14 years and 25 years.

It is really quite a sad state of affairs.

It is for these reasons that our laws and our courts are pivoting to alternative modes of settling disputes or properly known as Alternative Dispute Resolution.

Within the judiciary framework, they come in the form of Court-Annexed Mediation (CAM) and Judicial Dispute Resolution (JDR). Whereas trained mediators push for the parties to agree to a Compromise Agreement during CAM proceedings, trial judges likewise do so with the added weight of their office and status during JDR.

Interestingly, the lecturer pointed out that there is a about 60-70% combined success rate of the two resulting in cases being settled and for these to be removed from the dockets of the courts.

What got our attention was what the lecturer said next. It appears that the JDR was earlier not well received by many judges as they regarded it as a form of demeaning their status as they are reduced to mere abogado de areglo (lawyers who fix/settle things). This is a derogatory description as it connotes an improved table and set of chairs discussion where parties will be convinced to settle (somehow similar to a barangay conciliation).

Hence, the success rate then of the JDR was dismal due to the negative perception. The operative word is then, as now it is widely accepted and implemented resulting in a considerable increase in the success rate.

All due to a shift in perception. Having realized that cases which are settled resulted in the decrease of their dockets (and work load), many judges have actively played the role of a mediator to great effect.

While there are still a few improvements that could be made, particularly on the level of fairness as some feel slighted that others are not really committed to it, the over-all trend now is for its wide acceptance.

As for the CAM, the common sentiments of the 80 or so lawyers in the theater was that the mediators lacked training and motivation. Almost all attributed these to the lack of funding and low compensation. Both items readily acknowledged by the lecturer. Be that as it may, there are solutions being proposed to address then including improving the perception of the mediators and their offices to gain more public confidence.

On a personal experience, having had my fair share of CAM and JDR experience, I can say that these are indeed very useful in helping the parties settle their dispute. Often, and contrary to the popular belief that lawyers become obstacles to a settlement, it is actually the litigators who try their best to convince the clients to settle.

I once handled a 5-year old case (which have not yet seen Pre-Trial despite the years that lapsed!) involving a bus accident which killed the complainant’s 20-year old daughter, who happened to be a young mother herself. During the CAM, I empathized with the grieving mother who at, one point, asked a very emotional and powerful question: “Attorney, paano mo pre-presyuhan ang buhay ng anak ko?!” (Attorney, how can you price the life of my daughter?!) No amount of law school education or law firm training will prepare yourself to real life questions. Suffice it to say, within 6 months from handling the case, and after several conferences involving 6-hour travel to and fro to the hearings, we were able to arrive at a Compromise Agreement. I was very thankful to our mediator (PMC-RTC Trece Martires, Cavite) who exerted utmost patience and gave us every opportunity to settle. Kudos!