Thursday, August 17, 2006

Mediation not applicable to domestic violence cases, with apologies to Pia Guanio

Update: Supreme Court rules that RA 9262 cases cannot be mediated

The non-referral of a VAWC (violence against women and children) case to a mediator is justified.

Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of violence implies that the victim is somehow at fault.

Garcia vs. Drilon, G.R. No. 179267, June 25, 2013
Several days ago, I was watching Channel 7’s “24 Oras” early evening news program when Pia Guanio, the entertainment segment host, reported an item about Hollywood actor Lou Diamond Phillips. As reported, Phillips was arrested by Los Angeles police for verbally and physically abusing his live-in girlfriend. Phillips, who’s got Filipino ancestry, was released by the police several hours later on his own recognizance.

What got my attention was Pia’s last statement in her news report. I stand to be corrected but I heard Pia say, “Pansamantalang pinakawalan si Phillips upang masubukan niya at ng kanyang ka-live in ang meditation.” In English, that translates into, “Phillips was released by the police so that he and his live-in partner can try meditation.”

Either Pia Guanio (a beautiful and smart woman desperately in need of a fashion make-over) misread the teleprompter, or the news editors of Channel 7 were really at fault. You see, the word Pia should have used instead of MEDITATION was MEDIATION. For a brief moment, I had visions of Lou Diamond Phillips and his live-in partner doing some Transcendental Meditation in order to solve their relationship problems. Om! Om! Sorry, Pia!

Levity aside, I have written several articles on RA 9262, our country’s landmark law on violence against women. If you’d like to review these articles, here are the links:
Hope and help for the battered woman (2): RA 9262 essential provisions
Hope and help for the battered woman (3): RA 9262 Protection Orders
Hope and help for the battered woman (4): Emotional abuse / psychological violence
Hope and help for the battered woman (5): Biblical response to abuse; evangelical Christians are best husbands – University of Virginia study
The “Battered Woman Syndrome” as defense
What is mediation?

Mediation is a method of “Alternative Dispute Resolution” and under the Supreme Court guidelines, it is mandatory for all civil cases and some criminal offenses (like BP 22 or bouncing checks). The court orders the litigants to undergo mediation proceedings before a Supreme Court-trained mediator, for a period of 30 days. Mediation is informal and the mediator tries to get the parties to settle the case amicably, on a win-win scenario for all the parties involved. If the mediation fails, then the case is referred back to court for continuation of trial. But experience has shown that mediation works well with a high percentage of cases amicably settled.

Labor dispute cases in the National Labor Relations Commission (NLRC) now also undergo mandatory conciliation/mediation proceedings. Of course, most of you are familiar with the mediation proceedings at the barangay level, as provided for by the Local Government Code of 1991.

RA 9262 cases expressly exempted from mediation (by barangay officials, police officers, social workers, and judges)

It appears from Pia’s report and the Internet resources I checked that California and some other places in the USA allow mediation proceedings even in domestic violence cases. But, here in the Philippines, RA 9262, its Implementing Rules and Regulations and the Supreme Court Rule for RA 9262, all prohibit mediation of cases involving violence against women. You might ask, if mediation has been proven to work well, then why is it prohibited in RA 9262 cases?

The Supreme Court, quoting the Commentary on Section 311 of the Model Code on Domestic and Family Violence, gives us the reason why:

Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of violence implies that the victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is problematic because the petitioner is frequently unable to participate equally with the person against whom the protection order has been sought.
Alison E. Gerencser, in an article entitled “Family Mediation: Screening for Domestic Abuse” (Florida State University Law Review), argues forcefully that domestic violence cases should be exempted from mediation proceedings. While written in the context of American society and a bit dated since it was written in 1995, it is a very informative article. Among other things, Gerencser cites studies that show women have only suffered more abuse after mediation sessions than after trials.

Anyway, here are the specific provisions that prohibit mediation or conciliation of domestic violence cases:
RA 9262

Sec. 33. Prohibited Acts. – A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence he applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under this Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under this Act.

Failure to comply with this Section shall render the official or judge administratively liable.

Implementing Rules and Regulations

Section 27. Prohibited Acts – A Punong Barangay, Barangay Kagawad, or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence the applicant to compromise or abandon any of the reliefs sought in the application for protection order under the Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under the Act.

Failure to comply with this Section shall render the official or judge administratively liable.

Law enforcers and other government personnel shall not mediate or conciliate or influence the victim-survivor or applicant for a protection order to compromise or abandon the relief sought.

Section 47, paragraph (o): Shall not attempt to influence the victim-survivor to abandon her claims. All forms of amicable settlement under the Katarungang Pambarangay such as mediation, settlement, conciliation, arbitration shall not apply to cases of VAWC in the Act xxx

Supreme Court Rule

Sec. 23. Preliminary conference.—
(a) When conducted.—A preliminary conference, which is mandatory, shall be held on the date indicated in the notice.
(b) Notice.—The notice shall be served the parties, including the offended party, who shall be required to notify their respective counsels, if any. The parties shall appear in person at the preliminary conference and submit their position papers setting forth the law and the facts relied upon by them.
(c) Nature and purpose.—The court shall consider:
(1) The propriety of issuing a protection order. The court shall not deny the issuance of a protection order due to the lapse of time between the act of violence and the filing of the petition, subject to Section 24, R.A. No. 9262. The issuance of a barangay protection order or the pendency of an application for a barangay protection order shall not preclude a petitioner from applying for, or the court from granting, a protection order;
(2) The simplification of the issues; and
(3) Such other matters as may aid in the prompt disposition of the petition.

The court shall not refer the case or any issue thereof to a mediator.
Perhaps, as judges, lawyers, social workers, police officers and religious ministers gain more knowledge and experience in handling domestic violence cases, at some stage of the proceedings, some form of mediation or conciliation could possibly be availed of to end the violence, mend the marriage and bring unity back to the family. Let’s all MEDITATE on that.

1 comment :

Atty. Gerry T. Galacio said...

Liz F,

I deleted your comments to protect your privacy and that of your children. If you had just stated your name without giving your location, it would have been okay.

1. How to deal with that police officer: You can inquire from the PLEB (People’s Law Enforcement Board in your city) as to what charges you can file. Try also the IAS (Internal Affairs Section) but this might nit be the proper forum.

You could also possibly file violation of Section 27 Prohibited Acts (as I discussed above) against that police officer.

2. Please read my RA 9262 posts (look for the link in the sidebar), specially the post on Protection Orders. You can apply to the court for Protection Orders called “exclusion order” which will compel your husband to leave the family dwelling even if he owns it, and a “stay away order” for him to stay away from you, your kids, designated family members and from places you frequent like office, school, etc.

If your husband takes any of your kids, you can regain custody also through a protection Order.

3. The following are offices or agencies you can ask help from. The addresses are for Metro Manila but you can try to contact their regional offices (specially the NBI).

Department of Social Welfare and Development (DSWD)Crisis Intervention Unit (CIU)
Rehabilitation Unit Tel. No.: (02) 734-8635 NCR Ugnayang Pag-asa, Legarda, Manila Tel. Nos.: (02) 734-8617 to 18

Philippine National Police (PNP)
Women and Children’s Concern Division (WCCD) Tel. No.: (02) 723-0401 loc. 3480 Call or text 117 (PATROL 117)

National Bureau of Investigation (NBI) Violence Against Women and Children’s Desk (VAWCD) Tel. Nos.: (02) 523-8231 loc. 3403

DOJ Public Attorney’s Office
Women's Desk
Tel. Nos.: (02) 929-9010; 929-9436 to 37

Philippine General Hospital (PGH)
Women’s Desk Tel. Nos.: (02) 524-2990; 521-8450 loc. 3816

Women’s Crisis Center Women and Children Crisis Care & Protection Unit – East Avenue Medical Center (WCCCPU-EAMC) Tel. Nos.: (02) 926-7744; 922-5235