PREFACE

T
he integration of gender equality in the art and science of mediation is a challenge
from which the JURIS Project did not shirk. In the beginning, the connection of
gender issues to alternative dispute resolution did not seem quite obvious, I must
confess. But when the project began practicing mediation and judicial dispute resolution, and
began discussing this topic with the mediators and the judges themselves, as they confront
on a daily basis, men and women, both rich and poor alike, of high social status and those
who are unlettered, unschooled and sometimes unshod, then a continuing pattern of gender
concerns perennially crop up, and the result of those moments of collective refection, and
experience are summed up in this guidebook.
The project is exceptionally proud to have produced this guidebook, as our contribution to
the ever growing literature on gender equality in various facets of human interaction. Some
subject matter in law lend themselves more easily to a gender discourse, such as labor rela-
tions, family law and family disputes, property relationships especially between husband and
wife, and crimes against women. But the area of mediation and judicial dispute resolution
is no exception, and we hope that this guidebook will not only inspire our trainers, but will
also serve as a springboard for the continuing improvement of our gender fair practice of
dispute resolution.
We have designed this guidebook as a work-in-progress, where the users could make notes
on their refections and mail to us their comments and suggestions.
We would like to acknowledge the continuing support of the Canadian International Devel-
opment Agency for the development and publication of this guidebook. We would also like
to cite the painstaking efforts of our Gender Adviser, Atty. Eleanor Conda, and our Techni-
cal Assistant, Ms. Maritona Victa Labajo, in their task of putting together this guidebook. We
would also like to thank the following judges and mediators who have been gracious enough
to offer us their views and suggestions on this subject: Judges Felipe Banzon, Annette Chua
and Ray Alan Drilon from the Regional Trial Court, Mr. Gregorio Hoflena, Ms. Leticia Pic-
cio, Mr. Arnold Ilejay, Ms. Pam Henares and Ms. Mi-an Gidor (all from Bacolod and Silay);
Judge Maria Concepcion Pangan from San Fernado RTC, and Mr. Clem Basa, Ms. Vivian
Dabu, Mr. Tito Lazatin and Mr. Ronald Maniulit, mediators of the San Fernando PMC.
Lastly, we would like to thank our artist, Mr. Danvic Briones, who did the lay-out and the
cover of this guidebook.
The long term hope of our project is not only to make the resolution of cases faster, but
also fairer, and in particular, gender fair.
HECTOR D. SOLIMAN
Project Director, JURIS
1
INTRODUCTION
M
ediation is a fast and less expensive mode of dispute resolution. It is a process
of resolving conficts between parties, with the assistance of a neutral third party
called the mediator. The mediator facilitates such process of exploring and
eventually arriving at a mutually acceptable resolution of the confict. While the mediator has
no formal decision making power, the consensual settlement arrived at is enforceable and
binding on the parties involved.
Mediation empowers both parties; it grants more autonomy and self-determination in their
search for settlements, more collaboration as the end goal is a compromise agreement, more
conciliation as it restores relationships severed by the confict, and importantly, mediation is
more time-effcient and less costly.
While the 1987 Philippine Constitution has well provided for its basis, mediation in a
practical sense, declogs court dockets and provides expeditious resolution of cases already
fled in courts. But while mediation can successfully address the problem of case congestion
and its consequent delay, it does not automatically address problems arising from the basic
inequalities that exist between the parties involved in mediation. While it provides the poor
and marginalized an alternative in seeking redress of their grievances, concerns have been
raised about its effcacy in promoting basic rights and interests, especially of women.
Without a gender (and social context) perspective, the mediation process can resolve cases in
a faster and more effcient manner, but may maintain, if not exacerbate, the disadvantaged
position of the poor and the marginalized, especially women. Informed observers argue
that mediation, through its procedures and its goals, can divert the parties from focusing on
their legal rights (that have already been well provided by existing laws) towards a negotiated
agreement that refects societal power imbalances. The mediation process can arrive at
a compromise agreement, but one that does not necessarily consider, and address the
imbalance in the power relations based on gender.
On the other hand, mediation could balance the power between conficting parties in more
collaborative, non-coercive ways at achieving agreement, through the use of principles
and values that are traditionally associated with women and what is feminine. While the
litigation process promotes a more formal, adversarial and coercive approach (conventionally
associated with the male genre), mediation promotes cooperating more than competing,
compromising more than dominating, communicating more than asserting.
In the end, integrating gender as a social context issue in the mediation process can ensure
that women, especially those that belong to the disempowered sectors, can confdently and
signifcantly engage in this critical process and at the same time, have greater access to justice
in a more sustainable and strategic way. Moreover, as actual experiences of mediators and
judges would show, mediation can be a process that reinforces and validates a feminine
2
approach to confict resolutionmore inclusive, cooperative and more sustainable.
Gender is included in the training course on ADR as integral to the social context and
equality issues underlying all forms of judicial education. The ultimate goal of integrating
gender in all the processes and elements that make up a successful mediation is justice and
equality for women.
Integration of gender and social context issues is a dynamic, continuing process that
recognizes the critical importance of identifying and sharpening the issue of gender-based
power imbalance in the entire mediation process. Gender integration is not simply done
by compartmentalizing one session on gender, along with other social context issues at the
beginning of the course. It is one important step, but in mediation, it can be achieved by
consistently and painstakingly asking, and seeking out gender and other equality issues in
every step of the way towards arriving at a compromise agreement between parties and the
entire ADR training course needs to refect this approach.
It is therefore the aim of this short guide to integrate gender and gender equality concepts
and approaches in the basic mediation course for mediators and JDR judges. We hope
to lead the users of this guide into a process of refecting on: one, the elements in the
mediation cycle that have gender dimensions and issues, and how effectively they can be
addressed; and two, the power imbalances between the parties involved, based on gender
as they surface in and impinge on the process and the outcomes of mediation, with the end
in view of challenging traditional mindsets and effecting change in ones behavior towards
women, and men. Actual experiences and personal narratives of judges and mediators have
been of great help in putting these ideas and concepts together.
This short guide to gender integration in mediation is based on actual innovations and
insightful refections of both resource persons on gender (all female), and trainers on ADR
who are confronted with the real, day-to-day questions in the task of mediation. Likewise, it
is a product of the continuing process of all partners involved in the JURIS Project, through
sustained exchange and interaction in workshops, to arrive at more gender-fair and gender-
responsive training interventions. This guide is a compilation of their own independent
study and individual inquiry on how to both improve access to justice by women, and make
them more active and satisfed participants to the process and outcomes of the mediation.
This resource guide serves as a supplementary material to enhance the existing modules
on gender, and the entire training course on mediation. It deals frst and foremost with
the context and purpose of why gender should be integrated in mediation, then proceeds
to propose a module on instilling gender in the training of JDR judges and mediators.
Preliminary ideas in the formulation of a gender analysis framework and tool in mediation
is shared, and a list of proposed articles that can be possibly used both for purposes of
instruction and referencing is annexed.
This resource guide is intended to meet the needs of judges and mediators for an
introduction to gender integration in mediation. We hope that, in addition, it will be useful to
3
those who are already familiar with the fundamental concepts and methodologies on gender.
We hope that it can stimulate the users to turn to the original books where concepts and
principles are set out in detail, and learn from various authors who have exhibited a deep and
unwavering commitment to gender equality.
We wish to emphasize that this resource guide is a work in progressmore descriptive
than prescriptive, refecting and articulating, inquiring and suggesting all at the same time.
We thought that it has the potential of contributing to the continuing struggle for greater
gender equality and for womens rights, in a very specifc political and legal exercise such as
mediation. However, such a potential can only be realized if appropriate learnings are used
and applied in a sensitive, rigorous and skilled manner. Moreover, their use must be based
on a political and personal commitment to the principle of social justice, which includes
gender equality.

MARITONA VICTA LABAJO
January 17, 2007

4
A RESOURCE GUIDE ON GENDER FOR
MEDIATORS AND JDR JUDGES
TABLE OF CONTENTS
Preface
Introduction
Chapter I : Context and Purpose of Gender Integration in
Mediation..........................7
Chapter II : Gender Integration in ADR Training...................30
Chapter III : Some Notes on Gender Analysis in Mediation.........................47
Chapter IV : Bibliography of References ..........................50
Chapter V : Appendices
Appendix A: Key Concepts on Gender...................................52
Appendix B: Modules on Integrated Basic Mediation
Course and Judicial Dispute Resolution............55
Appendix C: Samples of Caselettes as discussion aids..........76
Appendix D: Survey Findings on Attitudes towards Women and
Personal Beliefs among Family Court Judges,
Prosecutors and Social Workers, 2005
5
6
GLOSSARY OF ABBREVIATIONS USED
ADR - Alternative Dispute Resolution
ALG - Alternative Law Groups
CODI - Committee on Decorum and Investigation
GAD - Gender and Development
JDR - Judicial Dispute Resolution
JURIS - Justice Reform Initiatives Support Project
WID - Women in Development
Women LEAD - Womens Legal Education, Advocacy and Defense Foundation
7
CHAPTER I : CONTEXT AND PURPOSE OF GENDER
INTEGRATION IN MEDIATION
INTRODUCTION
Gender in the History of Development
The goal for greater gender equality in development is well established, evolving from a
welfare approach--one that seeks to directly address practical, day-to-day needs of women
in the areas of health, education, child care--to an approach that espouses their ultimate
empowerment--one that emphasizes the transformation of relations between man and
woman through greater awareness, broadened participation in political affairs and self-
development among women. While the welfare approach is more concerned with effciency
in development with women sharing in the allocation of resources, the latter sees power and
control as critical in the transformation of womens lives. Through the years of practice, the
various approaches have come to co-exist, either singularly taken up by one organization, or
mixed and matched according to interventions through programs and projects for women.
Policy Perspectives that Emerged
Two policy perspectives have emerged from such accountsone is called women in
development (WID) which aims to include women in development projects in order to make
these projects more effcient, and two, gender and development (GAD) which addresses
inequalities in womens and mens roles in relation to development.
The shift of perspective refects a greater understanding of the more urgent issues
confronting women, and at the same time, focuses on societal norms and values that are
pervasive and all-encompassing, including in development organizations. Male dominant
values and norms are found to prevail in these development organizations, which have
failed to examine and recognize the contribution of women to these organizations. These
male dominant values only recreate and reproduce the gender hierarchies and inequalities
dominant in the broader society. This insight has invariably led to the concept and practice
of mainstreaming gender, not just in organizations doing development work, but in political
institutions as well, including state instrumentalities.
Concept of Gender Mainstreaming
Realizing how organizations and institutions contribute to the continued oppression and
marginalization of women, attention has been turned to mainstreaming genderdefned
8
as integrating gender concerns in every aspect of an organizations or institutions policies,
priorities, structures and processes. Again, how gender mainstreaming is exactly defned and
operationalized within an organization or institution has been contested for a while.
Approaches to Gender Mainstreaming
There are essentially two approaches used in gender mainstreaming. The frst is the creation
of, or the delegation of gender concerns to, a smaller, specialized unit or program within the
organization or institution, and make it assume the principal, if not the sole, responsibility
over gender. In this way, organizations or institutions are consistently obliged to develop
and maintain a more visible and radical commitment to gender equality through the
allocation of mainstream resources (both human and fnancial) to this smaller unit.
In the Philippines, governments (both national and local) and development organizations
signal their acknowledgment of the critical importance of womens issues in this manner.
In the Philippine Plan for Gender-Responsive Development 1995-2025, signed in
September 1995 during the Ramos Administration, this approach was the most pervasive to
engendering the bureaucracythat is, through the creation of a committee on gender, or
a gender desk with designated focal persons or action offcers in every national agency or
body, utilizing a mandated 5% allocation for gender and development from the departments
annual budget. In some local government units, a womens or gender offce was created
under the Offce of the Local Chief Executive where 5% of the local development fund is
automatically allocated.
The Supreme Court has opted to take this approach, when it created the Committee on
Gender-Responsive Judiciary to ensure the effective implementation of its Strategic Gender
and Development Mainstreaming Plan for the Philippine Judicial System in 2004.
This approach has been criticized though as compartmentalizing gender, relegating
organizational responsibility to only a selected few and rendering these gender specialists
unable to infuence and ultimately transform the broader organizational or institutional
culture and structures. In the case of the Philippines, the national mechanisms have
proven in the long run to be weak, under-resourced, vulnerable to the changing political
administrations and to co-optation by political parties and/or personalities. Moreover, the
automatic budget for GAD has been used as cookie jars for all unfunded activities that
practically involve women, that were eventually found to be whimsical and trivial, and not
having any impact at all in improving the lives of the women in general.
The second approach is to make gender mainstreaming as everybodys responsibility in
the organization or institution, and ensure that gender is integrated into all structures and
all areas of work It has been criticized however, as diluting or even distorting the issues
involved, and making them disappear altogether as a result of a consistent lack of attention
and resources provided to gender, compounded by the lack of sustained commitment on the
part of the decision-makers and battered by male resistance in a highly patriarchal culture
and bureaucracy.
Through the years though, it has become a consensus that both approaches be utilized
within the same organization, in order to avoid the continued marginalization and co-
optation of gender issues. Gender mainstreaming is currently appreciated by both
government and non-government organizations as well as international agencies, as both
a political and a technical process whereby organizations and institutions are purposively
and systematically alteredin terms of culture, norms and values, as well as their goals,
structures and programs, including their resource allocation, in the promotion of
gender equality.

Organizational Tasks for the Success of Gender Mainstreaming
According to Maya Buvinic (1984), the task of gender mainstreaming in
organizations using both approaches, must include the following tasks:
engaging in the internal and external political processes of a particular
organization or institution and its members;
the setting up of mechanisms (e.g Womens Desks, Gender Units, GAD Focal
Points, etc.), entrusted with the task of incorporating women and gender issues
into the design and implementation of policies; and,
the development of appropriate tools and technical capabilities.
This resource guide focuses on the third task to make the judicial system more sensitive
and more responsive to the needs and situation of women in the promotion of justice and
equality for all.

GENDER BIAS IN THE PHILIPPINE JUDICIAL SYSTEM
Gender Bias defned

According to Gender Sensitivity in the Court System(2002), quoting from the
Judicial Council of the California Advisory Committee on Gender Bias in the Courts by
Atchinson, (1998), gender bias is defned as the behavior or decision making of participants
in the justice system that is based on, or reveals the following:
9
stereotypical attitudes about the nature and roles of women;
cultural perceptions of their relative worth; or
myths and misconceptions about the social and economic realities encountered by
both sexes.
It is action based on stereotypical concepts about masculinity and femininity that results in
the privileging of male experiences, explanations and points of view at the expense of the
welfare and status of women and girl-children (e.g. mistaking a female lawyer for a secretary,
or dismissing a case of sexual harassment because the female complainant was judged as
having invited the harassment through her manner of dressing). Gender bias operates
against women in various ways: it makes them invisible; it misrepresents or distorts their
feelings, attitudes and interpretations of events; it justifes differential treatment of the sexes
like camaraderie with one sex but not the other; it fails to acknowledge the special needs
of women (e.g. trauma counseling and protective custody) of those involved (especially
women victims of gender violence) in the resolution of crimes. As such, bias results in
the discriminatory and insensitive mindset and demeanor of people involved in the justice
system, such as judges, prosecutors, lawyers and court staff.
Gender Biases in the Court System
In the same book, the following have been identifed as the forms and manifestations of
gender bias across the various phases of judicial action:
(a) invisibility of gender bias and non-recognition of the reality. Invisibility means
the failure to recognize its existence, a denial of the inequality suffered by
women in the courts.
(b) double victimization or double jeopardy. This phenomenon involves women in
cases of sexual and physical violence. It occurs when a female victim of sexual
harassment or rape, for example, is twice victimizedfrst by the abuse and then
by the blame that follows it.
How women dress, how they answer back their male partners or spouse in a confict, or their
subsequent action, or inaction after an abuse, are often used against them as proof that the
act is not actually an abuse.
Sexual or physical abuse is perceived oftentimes, if not all of the time, from the perspective
of a man. While it is natural and acceptable for a man to be aggressive, it is not natural and
is totally unacceptable for a woman to join the man in his home, or to dine and drink with
him, or accept a ride home. Doing so constitutes consent to whatever the man pleases to
do with her. It has been found in the Philippines that judges are wont to rule in favor of
defendants of cases involving physical or sexual abuse, if the complainant fails to comply by
the more traditional, conventional and acceptable mores and behavior of a lady.
10
(c) negative attitude towards female victims as well as offenders. This form of
manifestation of gender bias is almost a consequence of the second. Because
those who are victimized are seen as having caused their own victimization, they
are perceived negatively and treated roughly by law enforcement offcers, court
personnel, prosecution lawyers and even, judges. A rape victim is humiliated,
not just by the abusive act committed against her, but by the disdainful and
derisive acts and insinuations of investigating offcers, and the lack of sympathy
and understanding that underlies it.
Abusive acts are oftentimes stereotyped with corresponding conventional responses from
the victims. When a woman is raped or sexually harassed, the natural reaction expected
is an expression of violent objection, or protest. Without it, doubt is cast on whether
the crime was actually committed. This completely disregards the possible intricacy and
complexity that governs the relations between the abused and the abuser (when the abuser
is a close relative or friend, perceived as loving and caring fgure or authority), or the deep
psychological effects of such an act on the victim (that of being totally paralyzed by fear
and surprise).
These negative attitudes towards the female victims are found to have serious, long-standing
consequences. The complainants may failed to pursue and successfully resolve the cases
precisely because of the lack of suffcient evidence to prove the abuse, or may drop the case
altogether for fear of the grueling and intimidating process during the trial.
(d) gender insensitive court procedures. The court trial proceedings are both
grueling and intimidating to the victim and, insensitive to her actual feelings and
needs arising from the situation she is in. Examples of such insensitivity are
requiring the complainant to prove that the act is not wanted nor invited by
her, or allowing the accused to introduce evidence about the complainants
promiscuous appearance and behavior or past sexual experiences, and allowing
lawyers, both during the pre-trial proceedings and court hearings to grill victims
about irrelevant details of the crime and their previous sexual lives.
Allowing the counsel of the accused to probe the other aspects of the lives of the victim is
irrelevant to the case and instills a deep fear of loss of privacy for the latter, discouraging
her from pursuing the case to the end. The stigma of being exposed in public is distasteful
for victims who have already been violated. In the Philippines, while the R.A. 8505 (known
as the Rape Victim Assistance and Protection Act of l998) provides for assistance and
protection for rape victims, enforcement of this provision has been found to be very poor.
Moreover, not a few isolated cases are cited by women legal counsels of these victims where
the presiding judge would take so long to issue a protection order, and in some instances,
trivialize the need for one by asking the battered woman to run faster the next time she is
attacked by her partner.
11
Making court procedures more sensitive to the actual needs and situation of the victims
can spell a world of difference for both victims and those who fear being victimized. For
complainants, it changes ones perception of the rape and its victims, and the defnition of
sexuality that breeds it (virility is defned by man having absolute power over a woman); for
not-yet-victims, it frees them from the debilitating fear of the consequences of rape.
(e) trivializing gender crimes. Violence committed against women in marriage or
intimate relationships was previously perceived as domestic concerns, problems
to be resolved by private individuals involved in it. But even as landmark
legislation against violence against women and children have been enacted for
some time now, the perception remains that these crimes are only secondary to
more serious crimes as robbery, murder, graft and corruption.
The husband can be a morally upright, honest government offcial despite cheating on
and/or battering of his wife. The more brazen violence in the streets caused by drug-crazed
gangsters is not seen as alarming and as despicable as the quiet, hidden, violence committed
against wives by men in the privacy of their homes.
Law enforcers are still made to think that the best response to such crime is to pacify both
parties and fnd an amicable solution to their marital conficts.
(f) gender stereotypes affecting court actions. Stakeholders in the justice system,
including judges and lawyers still harbor stereotypes of how an abuser is,
and how an abused is. Abusers are almost always the rowdy, aggressive, the
uneducated, abrasive in their ways and manners; while the victims are those that
appear chaste and virginal. An educated, decent-looking, impeccable, neatly-
dressed gentleman (or a teenage boy for that matter) cannot and is not capable
of such crimes of violence against women. Conversely, a firtatious, seductive
looking woman with loose morals and wearing provocative clothes cannot be a
victim and could have only invited such acts from the man. The moral
character of a woman, and a man, is made relevant in sexual abuse. Thus,
appearances to their contrary can erroneously affect the judgment and the
eventual decision judges make.
These stereotypes and biases result to: one, women and children victims of sexual abuse
and other related crimes having diffculty in getting justice from the court system; and
two, women victims are discouraged from fling complaints and/or pursuing cases in court
because the various phases of judicial action are fraught with sexism and gender insensitivity
in favor of men. Therefore, with gender bias in courts, the decision-making process and the
outcome of litigation are negatively affected, disabling the justice system from rendering fair
and impartial decisions.
The book, Gender Sensitivity in the Family Courts (2005) cited the following gaps
between the law and what is actually being implemented:
12
(a) Family Courts have yet to be established in each province and city of the country
as RA 8369 (otherwise known as the Family Courts Act of l997) provides,
resulting to the clogging of court dockets on cases involving women, children
and families, and a long wait for litigants seeking redress;
(b) At the same breath, the mandated creation of Social Services and Counseling
Division at the regional level, have yet to be achieved due to numerous reasons,
foremost of which is the insuffciency of funds;
(c) The lack of sensitivity, interest, temperament and understanding among judges
handling Family Court cases; and
(d) The persistent use of gender-biased language in the formulation of laws, policies
and resolutions of the justice system that ironically includes even those that were
conceived to protect and promote gender equality.
Perceived Problems of Poor and Marginalized Sectors with the Justice System
A book produced by the Alternative Law Groups (ALG) entitled, From the Grassroots:
The Justice Reform Agenda of the Poor and the Marginalized (2004) discusses the
problems as perceived by grassroots groups themselves with regards to the justice system.
Following are the problems cited directly pertaining to the courts:
(a) lack of information on the part of judges and other administrators of the justice
system (like prosecutors and police offcers) about the issues concerning the
poor and the marginalized groups and the special laws governing them;
(b) lack of adequate legal representation before the courts and other tribunals;
(c) lack of support mechanisms for the poor and the marginalized groups who are
involved in cases;
(d) issuance and implementation of anti-poor policies and decisions;
(e) general discrimination against the poor and the marginalized groups within the
judiciary and the justice system;
(f) structural and systemic problems within the judiciary and the justice system that
impede the poor and the marginalized groups access to justice; and
(g) gender insensitivity and bias of the courts and other government offces involved
in the administration of justice.
13
Justice is perceived by grassroots groups as generally selective based on ones class or status
in society; likewise, women, especially poor women, think that justice is blind to their plight.
Gender Justice as a Continuing Discourse
According to a recent study undertaken by the Women LEAD for the ALG, Inc. entitled,
Tuning in to Womens Voices on Justice ( 2005), there is still a long way to go in defning
justice as it is actually lived out on a day-to-day basis by marginalized groups, especially
women and children. While the country has been consistently acclaimed for laws and policies
that promote and protect the rights and interests of women and children, their actual
experiences in their everyday lives and in the handling of their cases in the courts as victims
have fallen short of those legal standards.
Gender justice still needs defning from the context and perspective of Filipino women.
As the book explicitly states, materials available has yet to describe, study, document and
offer a theoretical discourse on how Filipino women conceptualize and practice justice.
The book also cites the work of Hilary Lips, [Sex and Gender: An Introduction], which
offers an explanation that serves to expound on the often intuitively-held belief that men
and women defne and deal with justice issues differently. While men determine what is just
or unjust on the basis of their sense of rights and equity, women--though cognizant of a
sense of rights and equitydefnes justice within the context of their relations with others,
primarily with their loved ones such as their children and their partners.
This view has been elaborately explained by Carol Gilligan, in her theory of gender
differences in dealing with confict, as published in the book titled, In a Different Voice
(1982). The male abstracts the moral (or the legal) problem from the interpersonal
situation, fnding in the logic of fairness an objective way to decide who will win the
dispute. The male perspective looks at confict resolution by applying rights in a hierarchy
and by abstracting the issues. For females, however, the world is a world of relationships
and psychological truths where an awareness of the connection between people gives rise
to a recognition of responsibility for one another, a perspective of the need for response.
The disputants are not seen as opponents in a contest of rights but as members of a
network of relationships whose continuation they all depend Consequently her solution to
the dilemma lies in activating the network (of interpersonal relationships) by communicating,
securinginclusion by strengthening rather than severing connections.
This difference in emphasis or valuing has been largely dictated by the socialization process
that men and women go through differently in life, in terms of what to aspire and work for.
Men aspire for, and their identities defned on, their independence and achievement, while
women aspire for, and their identities defned on, their capacity to love and care for others
within a nurturing relationship. Therefore, what may be totally unfair for a man, is a form of
sacrifce for a woman; what may be just for a man, is unjust for a woman, when it gives less
to, or hurts, the ones she loves.
14
And as interviews of mediators and JDR judges would indicate, women are not quick to
repay their debts when they know that the amount of money they are presently holding can
be used for providential needs of their families. While male mediators are quick to assert
that loans incurred are obligations to be paid, female parties do not immediately appreciate
a just act of paying a debt, that at the same time, can deprive her children of a
months meals.

As the authors of the book of WomenLEAD aptly assert, this understanding of gender
dimensions in the defnition of justice should inform and guide law enforcers and
administrators in understanding better what women say and how they behave even under
situations when there is direct and brazen violation of their basic human rights. How many
times in the past have we read in the papers, seen in television or, heard of stories of girl-
children hesitating to report incest for fear of the life of their mothers, of wives taking
back their stories about their battering husbands, of mothers tolerating for years abusive
relationships with partners, of rape victims forgiving their aggressors just so peace and
harmony can prevail in the family.
As we will note in the observations cited later by the Supreme Court itself in its documents,
judges, lawyers and other court personnel fail to understand the conditions and the
circumstances under which women confront and decide on justice issues in their personal
lives, resulting to behavior that is absolutely insensitive and unsympathetic to these
women victims.

RESPONSE TO THE PROBLEM OF GENDER BIAS IN THE COURTS
As a direct response to the problem, the Supreme Court formulated its own fve-year gender
action plan in a document entitled, Strategic Gender and Development Mainstreaming Plan
for the Philippine Judicial System (2004). In an administrative circular, the Committee on
Gender-Responsive Judiciary was created to ensure the effective implementation of the said
plan. This document follows the pioneering spirit of the country in mainstreaming gender
and development. The Plan identifed several major gender-related issues, as follows:
(a) lack of awareness within the judicial system on gender issues, including those
related to the management of cases, an effect of which is the lack of sensitivity
of Family Court judges to concerns and circumstances of women and children;
(b) lack of sensitivity among the court personnel, in court policies and procedures,
such as the Rules of Court and the Code of Ethics for justices, judges, lawyers,
to women and childrens conditions and circumstances (e.g. lack of adequate
resources) rendering them more vulnerable;
15
(c) lack of gender-related and sex-disaggregated database on the judiciary from
which to base a gender awareness training;
(d) prevalent use of sexist and non-inclusive language in rules and court discussions
and a general organizational culture, values and work ethic that are not
necessarily supportive of gender equality, womens rights and human rights,
manifest in the absence of recognition or reward given for the promotion of
gender sensitivity and responsiveness in the performance of judicial and non-
judicial personnel;
(e) law schools remain to be indifferent to gender issues and needs, thus, failing to
discuss gender issues in the court system;
(f) women and childrens groups remain to be unrepresented in multi-stakeholder
forum that the Action Program for Judicial Reform (APJR) organizes on a
regular basis.
As a response, the Supreme Court has formulated its fve-year strategic mainstreaming plan
for the judiciary with the following as its vision and mission:
Vision
A judicial system that is sensitive and responsive to gender equality and
empowerment in all its policies, programs and activities, thereby, providing
effective, effcient and accessible justice to all.
Mission
To enhance speedy and fair administration and dispensation of justice to
all, regardless of age, gender, class, ethnicity, religious or political beliefs
through an effective and effcient judicial system that works with dignity,
integrity, accountability and transparency.
The outcomes are as follows:
(a) gender-sensitive justices, judges, lawyers, court personnel, mediators and litigants;
(b) gender-responsive rules, procedures, systems and facilities;
(c) developed gender-related judicial system database;
(d) increased access by women and children to the judicial system;
(e) strengthened collaboration with the legislative and executive branches, academe,
Integrated Bar of the Philippines, civil society and funding institutions;
16
(f) fully operational Family Courts nationwide; and
(g) organized Committee on Decorum and Investigation (CODI) and trained CODI
members in each court station.
This will be achieved through the following core strategies:
(1) transform paradigm and enhance the commitment of the judiciary to gender
equality through training and capacity building;

(2) review or conduct gender audit of policies, programs and practices to make them
more gender-responsive;
(3) establish a gender-responsive database in the judicial system;
(4) promote the use of gender-fair language and core gender messages and rituals
for higher gender awareness;
(5) enhance partnership and networking with other gender and GAD advocates;
(6) organize regular Family Courts throughout the country; and
(7) create a CODI in each court station and train its members.
Moreover, the Supreme Court has formulated Rules on Violence against Women and their
Children and an Administrative Procedure in Sexual Harassment cases as guides to making
judges, lawyers and court personnel more gender-sensitive. The new Code of Conduct
for the Philippine Judiciary and the Code of Conduct for Court Personnel both emphasize
gender equality in court conduct. The GAD Plan supports the Davide Watch mission to
transform the judiciary into an independent, effective and effcient judiciary worthy of
public trust and confdence.
GENDER IN MEDIATION
In the Operations Manual for the Implementation of ADR in the First and Second Level
Courts of the Philippine Judicial System (July 2004), mediation is defned as a process
of assisted negotiation that relies on a neutral third party (mediator) to help parties reach
a mutually agreeable resolution. Participation by the parties may be voluntary (by private
agreement) or mandatory (through a public program such as court-annexed mediation).
Whether attendance is voluntary or mandatory, settlements are consensual; the mediator
has no authority to impose a result. Settlements reached through mediation are binding
upon the parties. Forms of mediation include evaluative, problem-solving, facilitative,
transformative and therapeutic.
17
The discussion on the merits of a mediation process is almost always juxtaposed to the
critique against litigation. Mediation is more speedy and less expensive, more amicable
and conciliatory, in the process restoring relationships severed by the confict and, more
importantly, empowering the concerned parties by exercising more autonomy and self-
determination. Mediation is essentially conceived as broadening access to justice by the
poor and the marginalized. It is an alternative to dispute resolution that does not abandon
the rights of the poor and the marginalized; instead its a reaction against the perceived
inaccessibility of rights in the complex web of the formal legal system, that is fraught with
rules and procedures that shut out the disempowered members of society who do not have
the means, nor the knowledge to navigate the system.
Some basic concepts have to be laid out before a discussion on the critique of mediation is
expounded, from the perspective of those promoting womens rights and gender equality.
Gender and Culture
Active engagement and participation in a very important process such as dispute resolution
takes place only when accomplished in a way and in a language that is understandable to
the participating parties. One decides to engage and actively sustains that participation,
when there is an outright appreciation of the possible merits and benefts from such an
engagement. And as numerous studies would show, individuals, especially under very
uncertain and/or crisis situations as in confict situations, decision making is greatly affected
by the following:
(a) cultural norms and standards;
(b) personal characteristics;
(c) feelings towards the issue and people involved in the issue; and
(d) the manner by which the problems and the proposed solutions are presented to
them.
In short, for a dispute resolution to be meaningful and effective for both parties involved, it
has to be sensitive to culture, and how it has conditioned individualsmen and womento
think, feel and, behave in confict situations. As the module on Social and Cultural Context
in Mediation in the Integrated Basic Mediation Course notes, the infuence of socio-
cultural factors such as class, gender, education, status, age, religion and regional values, are
recognized as critical factors to be considered in handling mediation, particularly in highly
emotional situations.

For example, as one female judge observes, a signifcant number of women enter mediation
not desiring to speak with their male adversaries, cannot even look the latter in the eye,
and thus, would rather course their communication through this judge. To her, this is a
behavioral manifestation of what women learn when they were growing up, particularly
those from the rural communities, that it is unladylike to speak directly with men, more
18
so, argue with them. Circumstances like these become even more pronounced for women,
whose personal identities and personal aspirations are oriented around preserving, and
maintaining relationships, where they live out a very specifc role as caregivers or as
caretakers. Thus, the judge makes it a point to speak in straight local language where she
knows she can make the woman feel more comfortable and honest during the entire process.
Judges and mediators agree that women who enter litigation are often found to have attained
a certain level of awareness of their rights, though not totally aware of the transactional
costs, both direct and hidden, of exercising and asserting these rights. However, they still
think that women in general manifest behavior during mediation that would reinforce
socially-conditioned beliefs and attitudes towards themselves and towards men within a
confict situation. Women are often found to be either too talkative and overaggressive, or
too quiet and compliant. Admittedly though, the lower the economic status and educational
attainment of the woman, the more likely she can be scared and can be intimidated by her
male opponents. Or as some judges observe, women actively engage during mediation
(probably because they feel comfortable already), but when their case reach the court, their
husbands or male opposing parties completely take over.
Similarly, judges and mediators act and respond to cases, anchored in their own mindsets and
biases, as molded by cultural norms, values and standards, of what is right and wrong, what
is socially acceptable or not, or what is inherently male or female. As mentioned earlier,
ones attitudes and personal beliefs determine to a large extent how judges and mediators
decide to conduct and proceed with the mediation. And as one female judge observes,
judges can wittingly or unwittingly accept arbitrarily the subordination of a wife to her
husband, or the aggressiveness of a male party during mediation, or the domains that only
men can infuence and lead.
Thus, for these judges, it is most important to reiterate to women disputants the purpose and
merits of mediation, and to allow them suffcient time and space to ventilate their pent-up
emotions against their aggressors and against the situation. As some interviewees would
suggest, womens talk are stories behind the confict, manifesting the interconnectedness
of things and of relationships among people involved in the confict, putting into proper
context the origin and the dynamics of the confict. Moreover, as female interviewees would
believe, women nag and incessantly talk, because they feel they are not understood and they
need to keep repeating themselves.
Gender in Confict Resolution
When individuals enter into negotiations to resolve a confict, they bring with them a
certain orientation in their effort to fnd a resolution. The two most basic orientations
people adhere to are the competitive and cooperative approaches. How a party approaches
resolving a confict competitively or cooperatively depends on many factors. Many social
19
psychologists agree that the most important factors are the nature of the dispute and the
goals that each side seeks to achieve.
The competitive disputant negotiates to win and does it by using arguments and justifying
positions. The competitive party is frequently predisposed to gain advantage by misleading
the other through false promises or misinformation. S/He is inclined to pressuring the
other side into an agreement, using coercive or manipulative tactics. Or as respondents to
a case (as cited in interviews), they may cause inconvenience or discomfort through delay.
Tactics used are often the use of threats (nag-uusap tayo dito pero hindi mo alam ang
pwedeng mangyari sa yo sa labas!), extreme positions and offers (kung ayaw mo, eh di
huwag na!), brazen lying, exaggeration, ridicule (ano ang alam mo eh anak ka lang!),
accusations, use of brazen power and brute force, psychological or physical (hindi mo alam
kung sino ang pwede kong lapitan para matapos ito!. The competitive negotiator creates
tensions between the parties involved, and often resulting to mistrust and loss of confdence
in one another. Competitive negotiations are often based on powerincreasing ones
own and reducing the other partys. And as one female mediator would attest, competitive
negotiators are betrayed by their posture, their behavior and their language, when they enter
the mediation process. Competitive negotiators more often are those who walk out on an
ongoing negotiation.
The cooperative approach on the other hand, starts from a very different perspective.
The cooperative disputant negotiates to fnd common interests for a mutually benefcial
resolution and does it in an open communicative form. S/He is more inclined to listen,
ask questions and generate more information. S/He tries to understand the other sides
perceptions to avoid misunderstandings, and deals with the emotions to gain a better grasp
of the other partys needs. The cooperative negotiator breeds more trust and confdence
and fosters greater openness and effective communication between disputants. It is based
on interestsexpressing ones own, listening to the others and seeking mutual gains and
interests.
The approach or confict style that one chooses to take in negotiating may logically follow
a rational, objective criteriasuch as selecting a style that can more likely lead and result to
ones desired goals. However, the personalities of the people involved, or how individuals
have been socially conditioned may likewise play a signifcant role in which confict styles are
brought to the negotiating table.
While the competitive negotiator may be able to get what s/he wants in terms of a
compromise agreement, the competitive approach severs the relationship with the other
party, and in many instances, compliance to the agreement is not sustained as it did not
consider effectively and substantively the needs and the situation of the other party. The
cooperative approach on the other hand, may be more effective in obtaining common goals
that are more able to be sustained in the long run. It has less risk as well in damaging the
involved parties relationship.
20
It has well been established that women perceive and approach conficts differently
from men. Women are socialized and conditioned to use predominantly the cooperative
approach, while men the competitive approach. The female perspective prefers
reconciliation of different positions, rather than a choice between them. The female
perspective prefers to look between and behind the positions in searching for a solution.
And as one male judge would admit, women are generally better inventors of ideas on how
to agree on a compromise.
Conversely, men tend to be more competitive and more argumentative. They negotiate by
arguing their positions and are oftentimes found to dismiss the other partys positions as less
important and more dispensable. Men generally negotiate to win and are often found to
compulsively use any methods to be able to do so.
Interviewees totally affrm these from their experiences. Women, regardless of their initial
posture when they entered mediation, tend to ask more questions, suggest more ideas on
how to resolve the confict, build scenarios and are more predisposed to compromise.
Unfortunately, the most serious limitation of the cooperative approach is its vulnerability
to exploitation by the competitive negotiator. Competitive negotiators may be unwilling to
cooperate and may see cooperative behavior as a sign of weakness that can be used to their
own advantage.
If men are more predisposed to use the competitive and women the cooperative approach,
the negotiations in mediation may not beneft women because competitive negotiation
can overwhelm the cooperative negotiator. Consequently, mediation in which the parties
negotiate for themselves may result to women getting less than what they could get in some
other form of dispute resolution.
Understanding how women and men approach and resolve confict differently is useful
for two purposes: one, in better understanding and putting into context the reasons and
motivations for the behavior of the man and the woman when they enter the mediation,
and two, for understanding the unequal power relations between the involved man and
woman.
Narrations from interviewees are replete with stories of this sort. Women asking questions
are frequently perceived as a weakness by the men and a step back from ones position (and
thus, for the competitive negotiator, provides them an opening for grabbing the opportunity
of turning the moment around in their favor). Women tend to tell long stories and get
a longer share of airtime during mediation, especially when they are aggrieved and seek
to use litigation as a redress for their grievances. They tend to contextualize the confict
with detailed and belabored stories from the past, which may sound strange and irrelevant
for a male mediator (but not so for female mediators). And according to a female judge,
when behaviors like these are rudely interrupted and dismissed by male judges, the women
feel that they are not understood and sometimes, are offended by such shabby behavior.
21
Consequently, they either clam up, or harden their position and take on behavior much like
their male counterpart. When this happens, misunderstanding and mistrust prevail and
no space for the pursuit of a mutually benefcial resolution is in sight. And as one female
mediator observes, gender, coupled with other factors such as age or economic status,
further compounds perceived and real inequality between a man and a woman.
Power Imbalance based on Gender
Power imbalance between parties involved in negotiations can be manifest, or hidden. These
imbalances can come in the forms of inequality or imbalance in areas that are identifed as
sources of power for individuals.
In conficts involving a man and a woman, be it in a lender-borrower relationship or a
personally intimate one as in marriage, power imbalances can be manifest in many forms.
Adapting from the concepts of Mayer on sources of power in a book entitled, The Power
Dynamics in Mediation and Negotiation (1987), the following are some examples of power
sources used often by men in negotiations:
(a) expert/information powerpower that is derived from having expertise in, or
having an access to a particular area or information about a matter pertinent to
the confict; examples of this is an undisclosed asset or property, or a law that
provides for the legal right of the woman over a property or asset, etc.
(b) associational power (or referent power)power that is derived from association
with other people in, or with power; examples of this include threat that a case
can be dismissed because the man knows of someone in power or with authority
(including a judge or his employer);
(c) resource powerpower over valued resources (money, materials, labor, goods or
services);
(d) sanction powerpower (or the perceived ability) to infict harm or to interfere
with a partys ability to realize ones interests;
(e) nuisance powerthe ability to cause discomfort to a party, falling short of the
ability to apply direct sanctions;
(f) personal powerpower that derives from a variety of personal attributes that
magnify other sources of power, including charisma, self-assurance, the ability to
articulate ones thoughts and understand ones situation, ones determination and
endurance and so forth.
22
On the other hand, the following are sources that are invoked by either mediators and
women during negotiations:
(g) formal position of authority (e.g. judge, priest, lawyer, mediator);
(h) moral powerpower that comes from an appeal to widely held values or
principles, including ones sense of uprightness, or a sense of ones human rights;
Perceived imbalances can result to an incongruent application of power on the part of the
more powerful party, such as setting terms and conditions of repayment of a loan guilelessly
proposed (and eventually accepted) by a lending company that are exorbitant and unrealistic.
The weaker party, relieved that s/he would be spared from being imprisoned, takes on a
default mode and accepts the terms without a critical examination of their basic fairness.
It is the task of a mediator to be aware of these sources of power and analyze how either
or both parties utilize them, consciously or unconsciously, during the mediation process.
Parties may not shun the use of alternative dispute resolution such as mediation, but
may still exercise power inappropriately, or ineffectively. And as a social worker-mediator
observes, power imbalances are often immediately and loudly manifest in the way the parties
conduct themselves in speech, in posture, in actuations. To her, this automatically signals
her power imbalance radar and allows her to heighten her sensory and intuitive awareness
during the entire mediation process.
If a mediator does not recognize and acknowledge the power imbalances, the dispute
resolution process is undertaken on a power-based approach rather than the interests-based
approach, where threats and battle of wills become the modes of action and where success
can only be attained by one or none of the parties.
Women, especially in family court cases such as spousal or child support or custody, are
often observed to have lesser bargaining power as they have less emotional and economic
ability to withstand the transactional costs of the mediation, resulting to acquiescing to
an agreement that may not be completely agreeable and acceptable to them. Oftentimes,
a woman involved in such cases do not have the resources to engage in long, drawn-out
negotiations and litigation and may be tempted to settle earlier in the process. Or worse yet,
she may agree on a compromise that is close to impossible to enforce, or an agreement that
puts the woman in a situation of having to incur the greater burden of enforcing it. Stories
from interviews would include a man who, after agreeing to support his wife and child, fails
to do so, while the court fnds itself helpless in enforcing the agreement due to the foreign
employment of the husband (an information he withheld during mediation). Or a man who,
after reluctantly agreeing to support wife and child, only terminates willfully his employment
just to spite his wife and assert that he is still in control. Or a compromise agreement that
would make the wife run after and practically beg for the support for her and her children
from her husband.
23

Feminist Critique of Mediation
Mediation however, has been criticized from a number of quarters, one of them largely from
the feminist camp. Criticisms though are framed mainly from cases mediated in the family
courts as practiced abroad, involving spousal and child support, custody, annulment and
reassignment of properties.
The question whether mediation, by itself (its norms and procedures, its underlying
principles and goals) will perpetuate gender bias within family law remains. In an article of
Nancy G. Maxwell on The Feminist Dilemma of Family Law Mediation, she raises critical
issues in family law mediation, to wit:
(1) Mediation does not take into consideration the reality of the power imbalances
that occur in negotiations between male and female, particularly of a male and
a female in an intimate and economic relationship. Because the participants in
mediation do their own negotiating, unequal bargaining power will disadvantage
the weaker party.
A females lowered earning capacity coupled with her identity as a mother, could signal
a danger for women in negotiating for themselves in mediation in that they may give up
economic security for residential custody of their children. Or it may mean giving up a
more just and reasonable claim for custody of her children from her abusive husband in
favor of bigger support.
(2) The adoption of different negotiating styles between male and female is a
compounding factor to the power imbalance. Maxwell argues that intrinsically,
men adopt the competitive style of negotiating while women adopt more the
cooperative style.

While the competitive style has more likelihood of breaking down negotiations because
it breeds tension, misunderstandings and distrust between the two concerned parties, the
cooperative style is vulnerable to the exploitation by the competitive negotiators, being
overwhelmed in the process. Consequently, mediation in which the parties negotiate for
themselves may result in women getting less than what they would have gotten if they had
used some other form of dispute resolution.
(3) Mediation according to critics privatizes justice and the law. Because it is
private, it prevents public scrutiny of the decisions that parties make to resolve
the dispute and it prevents an examination of any biases the mediator may have
used to mold the agreement. Consequently, the private nature of the decision
making does not make mediators accountable for shepherding agreements that
are not in womens best interests.
24
(4) Mediation does not have the mechanisms, methods to protect the weaker parties,
such as forcing the stronger party to expose its assets, or to discover dissipation
of assets. There is also no requirement that the parties be informed of the law
or the practices within the local courts concerning the issues the participants are
negotiating. The parties are reaching decisions without knowing what they might
receive from the court if the case were litigated.
(5) Mediation is seen as a way to trivialize family law issues. It diminishes the public
perception of the relative importance of laws addressing womens and childrens
rights in the family by placing these rights outside societys key institutional
system of dispute resolutionthe legal system. Consequently, mediation
obscures the importance of the issues of child custody and visitation, spousal
and child support and property division because these issues are not brought
before the public in litigation.
Feminist Dilemma in Mediation

Womens rights advocates however, are confronted with a dilemma in mediation. On the
one hand, it has been elaborately discussed earlier how mediation, if conducted without a
recognition and an acceptance of the unequal power relations between a man and a woman,
could compound such imbalance in favor of the man, maintain patriarchy, and aggravate the
disempowerment and oppression of women.
On the other hand, it must be accepted that mediation is almost the only form of dispute
resolution that has, as its underlying principles the values and goals associated with the
female traditions of nurturing and preserving relationships, meeting mutual needs rather
than enforcing rights. Even in the methods of approaching and resolving confict,
feminine values are invokedlearning effective communications as an ingredient to confict
resolution, asking questions to generate more information, empathic understanding of the
other partys needs and interests as equally important in asserting ones own.
In an article of Kamala Sarup on Confict Resolution from a Feminist Perspective,
she states: Confict resolution in feminist terms should primarily include an outcome
that addresses the underlying problems or issues, rather than just symptoms or surface
manifestations of the confict; it should be jointly determined and the process should
achieve at least some degree of satisfaction for the parties involved. Mediation as a mode
of ADR appears to have considered all these elements in the entirety of the process. It
addresses underlying causes of the confict to prevent its recurrence, promotes reconciliation
and the parties cooperate to arrive at a win-win resolution of the confict. In contrast, the
adjudicative mode is punitive, reconciliation of parties irrelevant to the goals and certainly,
as in any contest, only one wins, the other loses upon the judgment imposed by a third party,
the judge.
25
In an article of Ethan Frome on Empowerment in Mediation for the Masses, he notes
that mediation appears to embody a number of characteristics that feminists consider to be
preferable to that of the traditional legal approach, namely:
1. The rejection of an objectionist approach to confict resolution and the
consideration of disputes in terms of relationships and responsibility;
2. Theoretically, the mediation process is cooperative and voluntary, not coercive;
3. The mediator has no decision-making authority, but rather the parties exercise
self-determination in reaching a mutually agreeable settlement. This eliminates
the hierarchy of dominance of the judge/litigant and lawyer/client relationships;
4. In mediation, the absence of procedural rules and legalistic notions of relevancy
work to promote decisions informed by context rather than abstract principles;
and fnally
5. Emotions are recognized and incorporated into the mediation process.
This conception of mediation has led some to characterize it as a feminist alternative to the
patriarchally inspired adversarial system.
It may then be more worthwhile for womens rights advocates to invest their energies in
protecting mediation from being corrupted by the machismo of its participating parties.
Thus, gender integration in mediation.
Again, in the book Gender Sensitivity in the Family Courts (2005), the authors noted
that in Family Courts in other countries, family cases where non-legal and community
members are tapped as mediators are resolved more quickly and thus, less costly, and more
importantly, with relationships restored between parties. Except for criminal cases involving
violence (as the case in the Philippines where cases involving force and violence are classifed
as non-mediatable), mediation seemed to have generally worked. Some mediators would
even go on to say that some marriages have been restored after mediation, mainly because
it was the only opportunity where both spouses felt they were able to share an open and
honest communication with each other.
Moreover, the book goes on to state that one of the good practices noted overseas is the
prior determination of a partys ability to negotiate at equal footing in order to qualify for
mediation or arbitration procedures. This requires some form of preliminary analysis of
cases presented for mediation, in order to ensure that whatever imbalance of power that
will be manifest during mediation can be effectively worked out to protect the autonomy
and self-determination, particularly of the disadvantaged party. This procedure recognizes
26
the issue of unequal power relations between spouses which is the root of the unfortunate
predicament of most women and children.
For some judges, values and principles imbued with gender equality perspective are nothing
but good manners and right conduct--lessons we learned in school when we were growing
up. It is all about respect for the other persons dignity, regardless of class, ethnicity, color,
gender or other differences. It is all about being human and recognizing the humanity of
each one, and recognizing the equality that exists among people and individuals.
Role of Mediators in the face of Power Imbalance
Mediators can be equalizers of power. This can be done by providing both parties equal
representation and voice in the mediation process, and designing a process where rights and
interests are all acknowledged and recognized resulting to common interests identifed and
satisfed. In instances where there is an apparent power imbalance, mediators can organize a
forum outside of the mediation where there is a proactive measure to address the imbalance,
such as lack of information and understanding, and others.
Ethan Frome, in the same article, puts forward the following as plausible intervention
techniques that mediators can and do apply in addressing power imbalances without
necessarily infringing upon their impartiality:
exchange of information in the case of a lawyer/mediator providing legal
information (not to be confused with legal advise);
mandating full disclosure of assets;
advising participants to have their lawyers review any memorandum of
agreement;
advising participants to seek legal counsel before the mediation, to gain
knowledge about their rights and entitlements;
defating the stronger partys power infuence by questioning the party about the
fairness of an offer or accuracy of data;
caucusing with a party who is inappropriately taking advantage of the power
imbalance. Entreating the party to desist in the current course of action by
asking him/her to assess the risk of his/her decisions; and
the mediator terminating the mediation.
27
Interviews yield the following ideas from judges and mediators on how to intervene in the
face of power imbalances:
use of caucuses for various purposesextracting more truths, tempering an
overaggressive or abusive party, challenging a position or an assertion;
calling a break when situation has become too emotionally charged, or when one
party manifests indecisiveness or confusion;
asking one party, especially the one that appears to be more disadvantaged, to
seek legal counsel;
in instances when one party appears to be cowed into fear, confusion or
oblivion, intimidated, overwhelmed or confused, mediators make it a point to
summarize the facts of the situation, the points that have been raised so far,
reiterate the purpose and beneft of the process and allow more time for the said
party to reexamine and clarify ones thoughts and feelings.
Issue of Mediator Neutrality during Mediation in the Face of Power Imbalance
Concerns were raised about mediator neutrality in the course of the interviews conducted.
Some interviewees (all of them men), strongly assert that as mediators they should be
impartial, or at least, be perceived as impartial, therefore, impartial to both female and male
disputants.
Female mediators and a male judge however argue that in the face of power imbalance
between man and woman, especially in an intimate relationship, mediators can assume more
creative and innovative ways of mediating. They believe that in the face of a strong
and a weak party, if the mediator is neutral, there is no protection for the weaker party
and the stronger and more competitive can overpower the weaker party. In a situation
where a compromise agreement has been quickly achieved (more likely because the weaker
party is either overwhelmed or just wants to get the process over with quickly), the neutral
mediator does not have an obligation to review the agreement for overreaching, because
the parties have achieved the mediation goal of reaching the agreement. When the male is
using the competitive negotiating style and the female is accommodating to his demands,
neutrality will likely result in the man overpowering the woman. This is particularly true if
the relationship is an abusive one, or there has been a history of the male dominating the
female. Consequently, mediator neutrality will not protect the interests of women involved
in mediation.
Again, it would be helpful to reframe neutrality in mediation. The neutrality required is that
the mediator is neutral, impartial to any one position, and to interests taken by either parties.
28
But as a mediator that enters a process that decisively and purposively aims to equalize the
imbalance to ensure a fair and just settlement, interventions made toward that direction must
not be seen as being not neutral, or being partial to the weaker parties. Instead, mediators
must expose the objective and neutral positions as being in reality, the positions of the
established value-laden power structure. Blind application of mediation concepts that foster
male values, or at best, mediators who do not question the objective criteria for reaching
an agreement, will reinforce male domination. What we seek for in mediation is substantive
equality provided to women.
Other Critical Elements in a Mediation Cycle
Issues involved in the confict and the power relations between the parties are two of the
critical elements in a mediation cycle. But what are the other critical elements that may have
gender dimensions as well?

A resource book entitled, Building Peace: Best Mediation Practices in Filipino
Communities published by the Mediators Network for Sustainable Peace, Inc. cites
a confict diagnostic tool developed by Walton in a book entitled, Managing Confict:
Interpersonal Dialogue and Third-party Roles Second Edition, USA (1987). This tool
identifes the following elements in a confict cycle:
(a) parties or stakeholders or protagonists in the confict;
(b) events or conditions that trigger or hinder the manifestation of confict;
(c) manifest tactics or resolution initiatives; and
(d) consequences, including feelings, produced by the confict.
Adapting such tool in the mediation cycle to frame responses from interviews of key
informants from among the JDR judges and mediators, the following are identifed as the
critical elements in the mediation cycle, to wit:
(1) the litigants as parties involved in the mediation;
(2) the issues involved in the dispute and the power relations between the two
parties;
(3) the manifest approaches in decision making and confict resolution of each of
the party involved (and their possible differences);
(4) the possible consequences or impacts of the success or failure of the confict on
each of the party involved.
And as a last but defnitely not the least, let us add the element of the person of mediator
as the ffth element. This includes the mediators biases, stereotypes, personal beliefs and
attitudes that are directly pertinent to the dispute at hand.
29
notes page
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Chapter II : GENDER INTEGRATION IN THE ADR
TRAINING PROGRAM
INTRODUCTION
It is the ultimate aim of integrating gender in mediation to broaden access to justice.
and achieve a fair and mutually benefcial settlement for women, especially those that are
disadvantaged and disempowered. Thus, it becomes most important that the mediator
identify gender-based issues and concerns that may arise in the course of the mediation.
to allow more women to participate as equal parties to the confict and achieve justice and
redress in the outcomes of the process.
Suggestion offered in this chapter for trainers and resource persons involved in the ADR
Training Program seeks to assist participants in trainings, develop more sensitivity and
greater responsiveness in their means and in their approaches to facilitating disputants
resolution of their conficts and arriving at gender-fair compromise agreements. Concretely,
with both conceptual and practical tools laid out in this chapter, it is hoped that by the
end of the basic training on mediation, with integration of gender perspective enhanced
mediators and JDR judges would have been able to:
(a) identify gender-based differences and issues pertinent to mediation, in all factors
involved and
how these issues manifest at different stages in the entire mediation process;
(b) identify approaches and practices to enhance gender-responsiveness in mediation.
This chapter has three sections: one, the sub-module on Gender and Mediation, as integral
part of the third module on Social and Cultural Context in Mediation; two, suggested points
for incorporation of gender in the Integrated Basic Mediation Course and Training Course
on Judicial Dispute Resolution; and three, Trainers Notes on Key Topics on Gender. For
more details on these two courses, please refer to Appendix B on page 55.
SECTION 1 : SUB-MODULE ON GENDER AND MEDIATION

This sub-module on Gender and Mediation seeks to enhance the module on Social and
Cultural Context in Mediation (in the JDR and Integrated Basic Mediation courses) by
introducing basic concepts and principles of gender and gender equality in a separate
discussion. It further aims to initiate a process of developing more appropriate approaches
in integrating gender in basic mediation and judicial dispute resolution training.
30
Topic : Gender and Mediation
Duration : 1 hour
Role : Facilitator

I. BRIEF INTRODUCTION TO WHY GENDER IN MEDIATION
(Initial ideas and concepts may be drawn out from the frst chapter.)
II. PRELIMINARY EXERCISE:
The case analysis approach may be used as a preliminary exercise to draw out from
participants initial ideas and concepts that they have about gender. Trainers may refer to
Appendix C on Sample Caselettes as Discussion Aids.
Copies of the caselettes can be distributed to the various workshop groups and each group
shall be asked to discuss based on a set of guide questions for refection and analysis. A
brief presentation of the results of each groups analysis of their assigned cases can be done
in the plenary. Synthesis of the points raised can be done after the group reports, and can
serve as segue to the proposed inputs on key points on gender and mediation laid out in this
sub-module.
The resource person may refer to the actual results on the survey conducted among judges,
prosecutors, lawyers and court personnel on their Attitudes towards Women and Personal
Beliefs when establishing prevailing preconceptions and biases and existing realities among
the key actors in the judicial system. (Please refer to Appendix D for actual survey results.)

III. PRESENTATION OF GENDER ISSUES IN MEDIATION
(Note: There is very limited time for the following input. Trainers are then enjoined to condense the following
core messages within the limited time as practicable as possible. Finer points from these messages are laid out
just the same.)
Input Proper
Some key and basic points about gender have to be established frst and foremost.
1. Concept and Dynamics of Gender
1.1 Gender
defned as the SOCIAL CONSTRUCTION of PERSONALITY ATTRIBUTES/
TRAITS, ROLES, VALUES, CAPACITIES, NORMS and PRACTICES relating to being a
MAN or a WOMAN
31
determines what is ALLOWED, VALUED, EXPECTED and SOCIALLY ACCEPTED
of a man or a woman
refers to societys PERCEPTIONS of a MANS and a WOMANS WORTH by
distinguishing MENS WORK from WOMENS WORK (or what we know call as
SEXUAL DIVISION OF LABOR)
includes the MYTHS and MISCONCEPTIONS about the SOCIAL and
ECONOMICREALITIES encountered by both sexes
1.2 Gender Bias defned
Gender bias is defned as beliefs, attitudes and behaviors that manifest dominance of one
gender and disadvantages the other. It is action based on stereotypical ideas of masculinity
and femininity that result in the privileging of male experiences, explanations and points
of views at the expense of the welfare and status of women.
(Please refer to Appendix A on Key Concepts on Gender for additional points
for discussion and sharing.)
1.3 Gender Bias in the Court System
In the court system, gender bias is defned as the behavior or decision making of
participants in the justice system that is based on, or reveals:
(1) stereotypical attitudes about the nature and roles of women and men;
(2) cultural perceptions of their relative worth; or
(3) myths and misconceptions about the social and economic realities encountered
by both sexes.
Following are the forms and manifestations of gender bias across the various phases of
judicial action:
(a) invisibility of gender bias and non-recognition of its realitymeaning the
failure to recognize its existence and the denial of the inequality that women can
suffer in the courts;
(b) double victimization a phenomenon involving women in cases of sexual and
physical violence, where they are said to be twice victimizedfrst by the abuse
and then by the blame that accompanies the abuse;
32
(c) negative attitude towards female victims. Because those who are victimized
are often perceived as having caused their victimization, they are perceived
negatively and treated shabbily by law enforcement offcers, court personnel,
prosecution lawyers and even by judges;
(d) gender insensitive court proceduresCourt trial proceedings are grueling
and intimidating to the victim, insensitive to her actual feelings and needs arising
from the situation she is in. Examples of such insensitivity are (i) requiring
the complainant to prove that the act is not wanted or not invited; (ii) allowing
the accused to introduce evidence about the complainants promiscuous
appearance and behavior or past sexual experiences; and (iii) allowing lawyers,
both during the pre-trial proceedings and court hearings to grill the victims about
irrelevant details of the crime and their previous sex lives;
(e) trivializing gender crimesViolence against women were previously crimes
against chastity, domestic problems that are best solved by private individuals.
Though it has changed into crimes against persons, the public perceive these
crimes as secondary to more serious offenses such as robbery, murder, graft
and corruption. Law enforcers are made to think that the best response to such
crimes is to pacify both parties and fnd an amicable solution to their marital/
intimate conficts; and
(f) gender-stereotypes affecting court actionsJudges often have their own
stereotyped concepts of what an abuser is, and what an abused is. Abusers are
almost always the rowdy, the rude, aggressive, brazen, roughshod in their ways
and manners; while the victims are those that appear chaste and virginal. The
moral character of a woman, and a man, is believed to be relevant to the crime
of sexual abuse. Thus, appearances to their contrary can erroneously affect the
judgment and the eventual decision judges render.
1.4 Sexism in the Language of the Courts
Elimination of gender bias and discrimination against women must be manifest in ones
language frst and foremost as it refects ones mindset and consciousness.

1.4.1 Rationale for a Gender-Fair Language in the Judicial System
language articulates CONSCIOUSNESS; it is an expression of our basic needs and
feelings, our perceptions and motives, of realities and experiences;
language refects CULTURE; language encodes and transmits cultural meanings and
33
values in our society;
language affects SOCIALIZATION; children learning a language absorb as well the
cultural assumptions and biases underlying language use and see these as an index to their
societys values and attitudes.
1.4.2 Sexism in Language
Sexist language fosters gender inequality by discriminating against women while perpetuating
notions of male supremacy. It includes:
language that excludes women or renders them invisible (e.g. use of the generic masculine;
use of sex stereotypes; use of terms ending in man to refer to functions that may be
performed by individuals of either sex; use of terms as though they apply to adult males
only, or are appropriated to a particular sex);
Examples: man (as in Philosophy/Psychology/History of Man), policeman, freman,
mankind, manpower
language that trivializes women or diminishes their status (e.g. use of feminine suffxes that
make unnecessary reference to the persons sex; use of sex-linked modifers in relation to
particular roles or occupations);
Example: salesgirl
language that disparages and marginalizes women;
Example: Presidents Ramos and Cory, use of feminine names to name typhoons
language that fosters unequal gender relations (e.g. lack of parallelisms; use of terms that
call attention to a persons sex in designating occupations, positions, roles);
Examples: Chairman, Congressman, use of head of the family to automatically refer to
the husband/male regardless of ones status in the family
the use of particular adjectives in relation to one gender but not the other;
the use of metaphor which refect a male-centered view of the world or portray women as
objects; and
Example: referring to mythical characters as in Malakas and Maganda to identify personal
attributes of strength and beauty
34
The idea therefore is to USE ACCEPTABLE, GENDER-NEUTRAL LANGUAGE to
refect the change in ones consciousness, mindset and valuing. Concretely, the following
measures can be taken:
(1) use inclusive language; ex. human resources vs. manpower
(2) avoid sex-role stereotyping; ex. police offcer vs. policeman
(3) avoid using language that disparages and marginalizes women or persons of
another gender; ex. salesperson vs. sales girl
(4) avoid using language that fosters unequal gender relations; ex. Former
Presidents Ramos and Aquino vs. Former President Ramos and Cory
(5) avoid using he or she as a generic pronoun, by eliminating it altogether, replacing
the sexist noun or pronoun with a neutral noun or pronoun, or article, recasting
the noun and pronoun in the plural; ex. A court clerk can give an advice on the
matter vs. A court clerk can give her advice on the matter.
(6) avoid sexist language even in quoted material and neutralize the language by
paraphrasing the quote using non-sexist language and give the author credit for
the original idea or partially quote the material, rephrase the sexist part and name
the source.
2. Gender Issues in Mediation
Following are Gender Issues that can possibly arise during the course of mediation:
(1) sex stereotypes of the mediator, the parties/disputants and other personal biases
about being a man or a woman;
(2) power imbalance between the disputing man or woman;
(3) differences in the decision-making and confict resolution style and approach of
the disputing man or woman, and the mediator;
(4) difference in possible impact of success, or failure, of mediation for the man, or
the woman; and
(5) language of the mediator.
IV. SYNTHESIS
Refection and sharing by buzz groups:
1. Based on my personal experiences a judge or a mediator, how has gender stereotypes
35
or gender biases manifested in the mediation process? How have they affected actual
outcomes of mediation?
2. How can I as a JDR judge or mediator contribute in changing gender stereotypes or in
addressing gender biases toward the promotion of justice?
Responses can be written in metacards, participants facilitator in the plenary can ask to agree
by consensus on Q2.
References
Ala Medina, Adelaida (2005). Gender Issues in JDR. Power point presentation.
Vicente De Guzman, Veronica (2005). A. Gender Fair Language. Power point presentation.
Conda, Eleanor (2005). Gender, Justice and JDR. Power point presentation.
Gender-Fair Language: A Primer. University of the Philippines Center for Womens Studies, 1998.
36
37
SECTION 2-A : INTEGRATING GENDER in BASIC MEDIATION
COURSE
The Integrated Basic Mediation Course is a three-day training with the ultimate aim of a
producing trial court mediators with the requisite levels of knowledge and skills that will
make them effcient and effective in resolving disputes through compromise agreements that
are fair, lasting and that serve the mutual interests of all disputants. (Please refer to Appendix
B-1 for the complete design of the Integrated Basic Mediation Course.)
Note for Trainers: two additional, and deeper, concepts and principles that are gender-related, are introduced
in this section. It includes the following:
gender-based differences in confict management and resolution; and
imbalances in areas/sources of power.
Discussion of these points are laid out more in detail at the last portion of this section.
Following are suggested points and approaches for incorporating key concepts on gender
and gender equality in the Basic Mediation course.
A. INTEGRATION IN INPUT AND DISCUSSION
Specic section of the
module where gender can
be integrated
How gender can be
integrated
Module 1: ADR Topic 2: ADR *Content on social
relevance/context giving
emphasis on access to
justice by underprivileged
and disempowered, (add:
especially women)
*Include in the discussion,
input on manifestation of
gender bias, particularly
in the court system

Module 4: Conict
Management
Topic 1: Nature of Conict *Include in the input the
two conict styles and
approaches to conict
management (cooperative
& competitive approaches
as associated with
female and male genre,
respectively).
Module 5:
Communication Skills
and The Stages of
Mediation
Topic 1: Fundamentals/
Overview of
Communication
*Include in the input on
Barriers to Communication,
the concept of power
imbalance and the areas
where they are manifest
during the mediation
process, and how differing
conict management
styles further compound
power imbalance
38
Module 6: Parties to the
Mediation Process
Topic 1: Parties to the
Mediation Process
Topic 2: Stages of
Mediation
Topic 3: Roles of a
Mediator
*Include in the discussion
on Qualities of an Effective
Mediator,
(a) on attitudes/
orientationno gender
biases, personal beliefs and
attitudes that discriminate
and disadvantage women,
(b) on skillsconsistent
use of gender-fair/sensitive
language and behavior

*Include in the
competencies of an
effective mediator
as facilitator, skilled
in reading and (add)
intervening in underlying
dynamics of parties,
(add) especially power
imbalance in the various
identied sources of power.

*Reiterate gender-based
differences in factual
background-setting of
the case during joint
discussion.
*Caucusing was often
cited by mediators during
interviews as one of
the more potent means
for equalizing power
imbalance, thus, can add in
the inputs how these can
be done.
*Include in the input
how interventions can
be done by the mediator
in addressing gender-
based issues during the
mediation.
39
Module 10: Practicum *Observation and
evaluation guide of
mediator-coaches
during actual mediation
demonstration
*Include in observation
notes on pre-mediation
process, in family court
cases, pay special attention
in detecting possible
power imbalance between
the husband and the wife
and in what areas do these
imbalances manifest
*Include in observation
notes gender
responsive behavior and
pronouncements or those
that manifest gender
biases, of the mediator in
training.
*Include in the
deportment/decorum of
the mediator in training,
gender sensitivity
Note for Trainers and Resource Persons: The following points can be integrated in appropriate sessions of the BM
course in the language, attitudes and behavior of mediators:
Take seriously and listen intently to stories, views and options offered by the disadvantaged
disputant. Refrain from any comments that trivialize or marginalize them
Ignore totally gender-based stereotypes on roles, values, perceptions or preferences of
women and men, that tend to discriminate, disadvantage or denigrate especially women
disputants.
Refrain from making gestures or using language that sexually harrass women disputants
and other women involved in the process.
Use consistently gender-fair language.
As a general rule, the language, attitudes and behavior of mediators must foster and
manifest respect for all parties.
B. Use of learning aids and methods that surface or highlight gender issues.
These can include case analysis method using, for example, suggested caselets in Appendix
C; role playing, visual aid presentation, and so on.

40
41
SECTION 2-B : INTEGRATING GENDER in JUDICIAL DISPUTE
RESOLUTION COURSE
The Judicial Dispute Resolution Training Course is a two-day training with the ultimate aim
of producing an effective and effcient judiciary able to respond to the challenges of an
increasingly litigious society, burdensome court dockets and emerging worldwide trends in
judicial work. It aims to assist JDR judges to be effective in their new roles in resolving dis-
putes by agreements that are fair and will serve the mutual interests of the disputants.
Please refer to Appendix B-2 for the complete design of the Course on Judicial Dispute
Resolution.
Following are suggested points and approaches for incorporating key concepts on gender
and gender equality in the Judicial Dispute Resolution Training Course.
A. INTEGRATION IN INPUTS AND DISCUSSIONS
Section of the Module
where gender can be
integrated
How gender can be
integrated
Module 1: Conict
Nature & Sources,
Elements & Dynamics,
Bases for Resolving
conicts
*Add in the specic
objective #2 (illustrate
socio-cultural factors,,
elements & dynamics
in conict resolution),
input on gender-
based differences in
conict management
styles (competitive &
cooperative) and how
they can be manifest
during the mediation
Module 4:
Communication in JDR/
Neutral Evaluator
*Include input on power
imbalance and their
manifestations in the
mediation process, the
issue of neutrality in the
face of power imbalance
42

Notes for Trainers/Resource Persons: In appropriate sessions, the following points can be integrated:
1. Gender equality is integral to the principle of justice that mediation seeks to promote.
2. In JDRs assistance in equalizing unequal situations or addressing power imbalance
between disputants, the JDR judge may adopt the following approaches:
In the Opening Statement, lay down ground rules, including those referring to
situations of power imbalances between the parties;
set an example and enforces the rules through the whole process;
draw out story, views and options from the party who is at a disadvantaged
position;
offer options that can promote interests of the disadvantaged disputant.
B. Use of learning aids and methods that surface or highlight gender issues.
These can include case analysis method using, for example, suggested caselets in Appendix
C; role playing, visual aid presentation, and so on.
SECTION 3: TRAINERS NOTES ON KEY TOPICS ON GENDER
Topic : GENDER-BASED DIFFERENCES IN CONFLICT RESOLUTION
1. Two basic approaches to confict resolution
(a) COMPETITIVE
(b) COOPERATIVE
2. The COMPETITIVE APPROACH
* negotiates in a debate formusing arguments and justifying positions; does not seek for
new information nor create different options
* negotiator makes high demands and few concessions, predisposed to pressuring the other
side into an agreement
* tactics include commitments, threats, extreme positions and offers, lying, exaggeration,
ridicule, accusations, bluffs, moral language and power tactics
* motivated by the desire to win, to outmaneuver the other side, maximize pay-off
3. The COOPERATIVE APPROACH
* negotiations seek cooperation from the other side so that they can both work towards a
common goal, thus, often asks questions and generates more information
* tries to understand the other sides perceptions to avoid misunderstandings, and deals with
the emotions to gain a better grasp of the other sides needs
* the parties involved base their decisions and the results of the negotiations on external,
objective criteria; avoids pressuring each other
WOMEN ARE MORE OFTEN FOUND TO USE THE COOPERATIVE APPROACH;
while MEN ARE LIKELY TO USE THE COMPETITIVE APPROACH.
These differences in approaches to negotiating and fnding a resolution to a confict, are
even manifest in their language.
4. Language Distinctions
* Women tend to use conversation as a tool to BUILD RELATIONSHIPS, ESTABLISH
CONNECTONS and to SHARE EXPECTATIONSreferred to as RAPPORT TALK.
* Men tend to rely upon REPORT TALK, THE PURPOSE OF WHICH IS TO SHARE
INFORMATION AND SOLVE A PROBLEM.
5. The Ritual of the Fight
* Men usually take a ritualistic opposition and zealously muster all of the arguments possible
for their side. These may be seen as a personal attack by the other party.
* Women are better known to adopt to ritual apology; she is not accepting responsibility for
the offense, is just saying that she feels bad that something happened.
Reference:
Si Lizares, Andrea (2005). Dealing with Gender Dynamics and Power Imbalances. Power point
presentation.
43
Topic : POWER IMBALANCE DURING MEDIATION
Sources of Power
Imbalances can come in the forms of inequality or imbalance in areas that are identifed
as sources of power for individuals. Following are some examples of power sources
commonly used by men in negotiations:
1. expert/information power power that is derived from having expertise in an
area of work or business, or having an access to a particular area or information
about a matter pertinent to the confict.
Examples of this is an undisclosed asset or property, or a law that provides for the legal
rights of the woman over a property or asset, or knowledge in handling fnances in managing
the family business.
2. associational power (or referent power) power that is derived from
association with other people in, or with power.
Example of this include threat that the case be dismissed because the man knows someone
in power or with authority (e.g. the presiding judge, the husbands employer, or a local/
national politician).
3. resource power power or control over valued resources (e.g. money, materials,
labor, or other goods or services); or conversely, the power to deny the needed
resources, or to force the other to expend them.
Example of this include having more resources, or access to resources, to see through the
judicial process, or to pay for the hidden transactional costs of pursuing the case, or to
employ services of a good and honest legal counsel.
4. sanction/nuisance power power (or the perceived ability) to infict harm or
to interfere with a partys ability to realized ones interests (sanction), or to cause
discomfort, inconvenience to the other party
Examples of this include real threat to infict physical and psychological harm on the other
party, or in custody or support cases, to actually take away the child, or withdraw support
structures in keeping the child.
5. personal power power that is derived from a variety of personal attributes
that magnify other sources of power, including charisma or aggressiveness,
self-assurance or self-diffdence, the ability to articulate ones thoughts and
understand ones situation or the abject inability to articulate and assert oneself,
ones determination and endurance.
44
Examples of this include the more articulate and assertive one dominating or intimidating or
threatening the weaker, the more introverted or self-effacing. or one might have better self-
control in diffcult situations.
On the other hand, following are sources that are often invoked by either mediators, judges
or women during negotiations:
6. formal position of authority (e.g. judge, mediator, priest, lawyer, etc.)
7. moral power power that comes from an appeal to universal or widely-held
values or principles, including ones sense of uprightness, or a sense of ones
human rights.
As male judges respondents would often invoke during negotiations, the Filipino values for
respect, shame, ones personal legacy.
mediation is premised on both parties capacity to freely decide for oneself
and determine the best course/response to the confict, but mediators must
recognize that power imbalances can seriously impede the exercise of such.
interventions taken to equalize the power imbalance must not be mistaken as
being partial or subjective to the weaker party, but must be taken to ensure that
both parties, though unequal in power and capacity when they enter mediation,
can freely exercise their autonomy and their capacity for self-determination.
What can be done by judges and mediators in the face of power imbalance?
1. Develop analytical skills to detect power imbalances, analyze which source of power
is imbalanced, and make interventions to equalize such imbalance and determine how
best the more disadvantaged party can be helped.
2. Develop effective communication skills by:
(a) Listening, understanding and being sensitive to non-verbal language of both the
more powerful (e.g. bullying, sweet-talking, guilt-provoking, trivializing, beating
the bush, joking, etc.) and the more disadvantaged one.
(b) using gender-fair/sensitive language and consciously eliminating sexist
statements.
3. Fill in information gaps
Help the disadvantaged party in obtaining the necessary information. Ask provocative,
challenging questions about the veracity or adequacy of the information currently
made available.
45
4. Explore the need
Help the party identify ones needs and manage a way for these needs to be discussed and
laid out in the open. Then facilitate a process of generating more options for meeting these
needs.
Identifying the needs are often cited as a powerful antidote to power imbalance in the areas
of information, emotion, verbal ability, and others.
5. Use the strategy for enlightened self-interest
Enlightened self-interest recognizes that the dominant party has a responsibility for the
satisfaction of the weaker party. In the event that the other party opts out of the mediation,
the process ends, thereby making the dominant party realize that there is no net beneft from
ones superior power.
It would therefore be of help to mediators to constantly bear in mind, and to remind both
parties, of their individual responsibilities in making the mediation work.
Recommendations
1. Balance the competitive approach with the cooperative approach, discouraging the
parties from adopting positions, instead, encouraging them to look at the needs,
motivations behind the positions.
2. Increase awareness of gender dynamics to increase personal capacity. A skillful and
sensitive mediator will listen for and be attentive to the different styles of negotiating
used by men and women.
3. Recognize the power dynamics between the parties and address power imbalances
that put a partys capacity for autonomy and self-determination at risk.
References:
Si-Lizares, Andrea (2005). Dealing with Gender Dynamics and Power Imbalances. Power point
presentation.
Building Peace: Best Mediation Practices in Filipino Communities, A Compilation of Nine Community
Mediation Cases. Mediators Network for Sustainable Peace, Inc. Quezon City, 2002.
46
notes page
notes page
notes page
47
CHAPTER III : SOME NOTES ON GENDER ANALYSIS IN
MEDIATION
Gender Issues identifed during the Mediation Process
1. typology of the caseFamily Court cases almost always have gender issues (power
imbalance between spouses), though cases for mediation involving money between a
man and a woman can still manifest gender issues (e.g. difference in negotiating and
confict management styles, other power imbalance, etc.); gender-based imbalance is
often compounded by socio-cultural factors e.g. age/generation, socio-economic status,
educational level, etc.
2. sex stereotypes of the mediator, the disputants, and other personal biasesmany
judges and mediators still perceive men and women differently and these attitudes and
beliefs may manifest in their behavior during mediation
3. power imbalance between the disputants, especially if they are partners
4. differences in the decision-making and confict resolution styles and approaches
of both mediators and the disputants
5. differential impact of the success, or failure of the mediation for disputants
the success or failure of mediation often would have different impact for a man or a
womane.g. in incurring the costs of the failure of a mediation, or even the burden of
enforcing the agreement
6. language of the mediator
Social Integration Exercise
(This is an exercise taken from the Social Integration Exercise from the PHILJA Faculty
Development Seminar on Skills-Based Judicial Education and Course Design, 7-9 November
2005 at the Pan Pacifc Hotel, Manila.)
Following are several questions to guide the process of being able to identify social context
issues, including gender, in the mediation process, and thus, be able to be more sensitive
in ones words and in actions during the mediation process and arrive at a more just and
responsive compromise agreement.
48
A social context-based approach to mediation asks about:
1. Parties: Who are the parties likely to be before you? Who may not be in front of you,
and why? What is their background? Is their identity potentially relevant, either explicitly
or as a background issue?
2. Power: Is there a power differential between the parties? Does any such power
difference on the basis of social, political, economic and/or cultural forces manifest itself
as a legal inequality in this case?
3. Interests: Whose interests are served by the law in question? Are there implicit value
assumptions underlying the law?
4. Impacts: Is there a differential impact created in the application of the law?
5. The Law: What opportunities does the law and/or your authority as a judge or a
mediator afford to you to respond to the issues of inequality that you have identifed?
6. The Judicial Role: What is the judicial role vis a vis lawyers identifcation of the issues,
construction of the case, presentation of arguments, use of evidence, etc.
In Search of a Gender Analysis Framework and Tool in Mediation
While there is a wealth of literature that offers guide to gender analysis frameworks and
methodologies, many of these materials are on how gender considerations are integrated
into development initiatives, largely community-based.
As a tool for analyzing process and outcomes of mediation, gender analysis propels us to
ask whether men and women, as active and critical players in the mediation processas
both parties and as mediatorsare bearers of distinctive styles in negotiating and resolving
conficts, and as carriers of different sets of values and goals in bringing about justice
through mediation. And if so, as parties, how do these affect their interests and their needs,
their capacities and motivations to actively engage in such a decisive and critical task.
As mediators, gender propels us to adopt approaches that consider the factors rooted in the
unequal power relations between the man and the woman, and inform us of their impact on
the origins of the confict, its dynamics in the process of negotiating a mutually benefcial
resolution, as well as the actual outcomes of the process.
Therefore, in order to study and analyze the role of gender in mediation from a gender
perspective, it is essential to consider the following:
women as parties to the confict--What are their needs, expectations, interests, and
aspirations when they enter into mediation? What are their capacities and resources, as
well as vulnerabilities?
What are their distinctive styles of approaching and resolving confict that impinge on the
mediation process? How best can they be utilized in fnding an agreement to resolving the
confict?
women as party, in relation to the other partyWhat are the dynamics in the relations
before the confict, especially when they were formerly related in kinship, friendship or
intimacy? What is the underlying motive for restoring the relationship? Or for resolving
the confict?
differential impact of a success, or failure, of mediation for the womanSuccess
or failure of mediation affects men and women differently. What are the outcomes of a
successful, or a failed, mediation for the woman? Is it the same for the man? How does
a woman defne a successful mediation? How do these criteria impinge on their interests
and aspirations and how do they manifest their behavior during mediation?

49
notes page
notes page
notes page
CHAPTER IV: BIBLIOGRAPHY OF REFERENCES
Addressing Rape in the Legal System: A Multidisciplinary Training Manual (2001).
Womens Legal Bureau.
Building Peace: Best Mediation Practices in Filipino Communities, A Compendium of Nine
Community Mediation Cases. Mediators Network for Sustainable Peace, Inc.
CIDAs Policy on Gender Equality (2000). Canadian International Development Agency.
Feliciano, Myrna S., Sobritchea, Carolyn I., Gatmaytan, Dante B., Vargas, Flordeliza C.
Gender Sensitivity in the Court System (2002). Quezon City: University of the
Philippines Center for Womens Studies and the Ford Foundation.
Feliciano, Myrna S., Sobritchea, Carolyn I., Conaco, Ma. Cecilia G., Vargas, Flordeliza C.,
Avellano, Amy A., Hernandez, Eloisa May P., Magsanoc, Margaret D. and Rojas,
Wilma S. Gender Sensitivity in the Family Courts (2005). University of the
Philippines Center for Womens Studies and The Asia Foundation.
From the Grassroots: The Justice Reform Agenda of the Poor and the Marginalized (2004).
Quezon City: Alternative Law Groups, Inc.
Gilligan, Carol. A Different Voice: Psychological Theory and Womens Development.
Harvard University Press (Reissue Edition) 1993.
Manual of Judicial Writing (2005), Manila: Supreme Court of the Philippines.
March, Candida, Smyth, Ines and Mukhopadhyay, Maitrayee. A Guide to Gender-Analysis
Frameworks (1999). Oxford: Oxfam Great Britain.
Tuning in to Womens Voices on Justice: An Initial Review of Literature on Philippine
Publications on Women and Justice (2005). Womens Legal Education, Advocacy
and Defense, Inroads ALG Study Series No. 1, 2005.
50
Online (Web) Sources
Ethan Frome, Empowerment in Mediation: for the Masses [online: web].
URL: http://www.cfccj-fcjc.org/full-text/2001_dra/gary_wong.html
Nancy G. Maxwell, The Feminist Dilemma of Family Law Mediation. [online: web].
URL: washburnlaw.edu/faculty/maxwell-n-fulltext/1992-4intlpub67.php
Ira G. Parghi and Bianca Cody Murphy, Gender and Confict Resolution and Negotiation:
What the Literatire Says. [online: web].
URL: www.ksg.harvard.edu/wapp/research/working/parghi_murphy/pdf
Professor C. Neil Sargent, Understanding the Critiques of Mediation: What is all the Fuss About?.
[online: web]. URL: www.carlaton.ca/law/JusInRe/index-v2-jir.htm
Sarup, Kamala, Confict Resolution from a Feminist Perspective. [online: web].
URL: http: www.nepalnews.com.np/contents/englishweekly/telegraph/national.htm
51
APPENDIX A : KEY CONCEPTS ON GENDER

The practical exercise of integrating gender in mediation is premised on a clear understand-
ing of its fundamental concepts and principles. Not all concepts laid out here in this section
will be of practical use in the mediation process, but they are spelled out anyway just so it
can initiate a process of thinking, and rethinking of gender-related issues and concerns that
may arise.

Sex and Gender
In the work for gender equality, the concepts of sex and gender are fundamentally distin-
guished. Sex is the biological difference between man and woman. It is concerned with a
mans and a womans body, and all the physiological differences that exist. Sexual differences
cut across generations, cultures and development of individual families.
While sex is a given, and a factor of human biology, gender is not. It is a concept con-
structed by society, passed on from one generation to another, on how it is to be a man, or
a woman. Gender is often used to describe the socially-ascribed personality attributes/char-
acteristics, roles, activities, and responsibilities to being a man or woman in a given society.
Ones gender identity determines how one is perceived and how one is expected to think,
feel and behave as a man or a woman, because of the way society is organized. Masculinity
and femininity however, differ signifcantly from one culture to another.
Gender Relations
We cannot talk of sex and gender without talking about the relations that normally exist
between a man and a woman, and how power is distributed between them. Gender relations
vary according to time and place, between the various groups of people. They vary too ac-
cording to other social relations such as class, race, ethnicity and disability.
When we start to ask questions such as who does what and why? who has what and why?
who decides and how are decisions made and why? who gains from these decisions and who
stands to lose?, we realize and discover that inequalities in relationships exist between the
sexes. Through the use of gender as a lens to look at and examine things, a tool for analyz-
ing relations, we expose the hidden realities that oppress and marginalize women, and we
challenge what could have remained as widely-accepted and deeply-entrenched in our social-
ization as adults. We realize too how power relations within the household are interrelated
and intersect with those at the community, the market, the state and the international level.
52
Sexual Division of Work
In every society, men and women are assigned tasks, activities and responsibilities according
to their sex, and oftentimes, regardless of their individual identities, aspirations and capaci-
ties. This division of labor based on gender varies from one society and culture to another,
and within each culture, it also varies with externalities and over time. Because gender power
relations favor men, different values are ascribed to mens work, and to womens work.
Work is differentiated as being productive or being reproductive. Productive work is work
that produces the goods and services for income or subsistence. It is work that is paid and
because it has monetary value, it is valued and recognized more. Because it is monetized, it
is refected in a countrys economic statistics. But while both men and women participate in
productive work, it is valued and rewarded differently. Mens work is always seen as princi-
pally breadwinning, income generating for the family, while womans work is almost always
seen as mere supplement to the breadwinner.
Reproductive work on the other hand, encompasses the care and the maintenance of fami-
lies in households and their memberschild bearing and rearing, cooking, washing, cleaning,
nursing, even animal care and crop growing are included here. This is a job that is necessary
and essential for family development and society building, but remains largely as unpaid, un-
recognized and undervalued. In the rapidly globalizing world such as ours, this job has taken
a different dimension however. While performing this job for ones own family or extended
household in ones country, remain to be free and undervalued, it has become proftable and
rewarding to perform it overseas and for the beneft of another family other than ones own.
Thus, the phenomenon of migration of both professionals and non-professionals in the
caregiving, nurturing work from poorer countries to the more advanced and affuent ones
prevail.
Access to and Control over Resources
Even allocation of resources is said to be gendered. Access is defned as the ability to reach
and make use of a resource; control is the power to decide how to use the resource and
those who have access to it. A resource may be available, but remains to be inaccessible. Or
a resource may be accessible, but one has no control or power over it. Credit facilities and
livelihood assistance funds may be available for women, but they may not have the informa-
tion and capacity to properly access them. Or they may have been able to access them, but
if their tremendous burden in domestic work remains, they do not have complete control to
sustain them.

Women often do not have access to resources; but in cases when they do, they often do not
have the control over them.
53
Practical and Strategic Needs
Practical needs of women are those that pertain to survival, day-to-day, basic human needs
such as shelter, water and sanitation, health, education, child care. Women need them to
survive, to live, to perform their everyday duties as mothers, wives, caregivers. Meeting them
however, does not in any way change the lower status they have in the community and in
society, or reverse their subordinate position compared to their male counterpart. In fact, it
can often be used as keeping them in their lowly, subordinate and marginalized status.
Strategic needs on the other hand pertain more to power, control of women over their lives
and their destiny. These are needs that relate to their awareness of their personhood and
individuality, their dignity and their rights as humans, and their capacity to decide for them-
selves and do something about their situation. Issues often confronted by women in this
arena are those involving domestic violence, their reproductive health, their legal and politi-
cal rights.
It has been useful in the past distinguishing these two sets of needs in order to be better
understand how best to respond to the problem of inequality between the sexes. Again,
through the years of work for empowerment and development, both needs have to be ad-
equately addressed and appreciated within its own limits and prospects. Both needs have to
be addressed if women are to become fully human and fully alive.
Gender Equity and Gender Equality
As defned in a document on Gender-Based Analysis: A Guide for Policy-making, Status
of Women Canada (1996), gender equity is the process of being fair to women and men.
To ensure fairness, measures must often be available to compensate for historical and social
disadvantages that prevent women and men from otherwise operating on a level playing
feld. Equity leads to equality.
Gender equality means that women and men enjoy the same status. Gender equality means
that women and men have equal conditions for realizing their full human rights and potential
to contribute to national, political, economic, social and cultural development and to beneft
from the results.
Gender equality is therefore the equal valuing by society of both the similarities and differ-
ences between women and men, and the varying roles that they play.
54
APPENDIX B: TRAINING MODULES ON THE INTEGRATED
BASIC MEDIATION COURSE AND COURSE ON
JUDICIAL DISPUTE RESOLUTION
APPENDIX B-1: INTEGRATED BASIC MEDIATION COURSE
The basic course focuses on the WHAT and HOW of mediation and alternative dispute
resolution, and hence, provides the information and develops a general understanding of the
process, as well as its application.

INTEGRATED BASIC MEDIATION COURSE
The Integrated Basic Mediation Course is a four-day course and is the frst formal training
course attended by the prospective mediator. It focuses on the WHAT and HOW of
Mediation and ADR; hence, the content is concerned with providing information and
developing a general understanding of the process, as well as its application. The Basic
Course is a pre-requisite to the Advanced Training Course.

The Training Guide for Coaches is an essential part of the Integrated Basic Mediation
Course Manual to be used in assessing the performance of the mediator-trainees during
their internship period. The Guide identifes the strengths and weaknesses of mediator-
trainees and will enable the coach to provide appropriate coaching and/or enhancement
of the knowledge, attitudes, and skills (KAS) that the mediator-trainees need in
conducting mediation.
55
56
MODULE 1 : ALTERNATIVE DISPUTE RESOLUTION
Topic : THE PHILIPPINE JUDICIAL SYSTEM: AN OVERVIEW
Duration : 45 minutes
Role: Court Offcer
OBJECTIVES CONTENT METHODOLOGY
1. Illustrate the structure of
the Philippine Judicial
system.
Overview of the Philippine
Judicial System.
Interactive lecture
(with owchart on case
ow and chart on hierarchy
of courts)
2. Explain the concept of
judicial review.
Concept of judicial review.
3. Explain the concept
of access to means of
resolving disputes.
Access to means of
resolving disputes.
4. Describe the concept of
rights and obligations.
Concept of rights and obli-
gations.
57
Topic : ALTERNATIVE DISPUTE RESOLUTION (ADR)
Duration : 45 minutes
Role: Facilitator
OBJECTIVES CONTENT METHODOLOGY
1. Relate the rationale of
the ADR movement.
Rationale for ADR
movement
Social relevance/context
giving emphasis on
access to justice by
underprivileged
Role of mediator to
promote access to justice
Interactive lecture (with
active participation of
mediator-trainees)
2. Describe the big picture
of dispute resolution.
Dispute resolution
spectrum
3. Discuss the advantages
of ADR over judicial
resolution of disputes.
Advantages of ADR over
judicial resolution
4. Distinguish mediation
from litigation.
Mediation vs. litigation
5. Discuss standards
to determine
appropriateness of ADR
or judicial resolution.
Disputes appropriate for
ADR & those for judicial
resolution
Mediatable and non-
mediatable cases
6. Describe the indigenous
models of conict
disentanglement.
Indigenous models of
conict disentanglement
58
MODULE 2 : PARADIGM SHIFT
Topic : THE LEGAL MIND TO PROBLEM-SOLVING APPROACH
Duration : 45 minutes
Role: Facilitator
OBJECTIVES CONTENT METHODOLOGY
1. Illustrate how the legal
mind differs from the
problem-solving mind.
The legal mind as blame-
punishment oriented and
the problem-solving mind
as needs/interest oriented
Game/case study, group
evaluation/debrief then
lecturette
Game: The Matchstick
Challenge (highlights
the tendency to form
paradigms suggested
by patterns, and how to
overcome this mindset)
Case: Total Car Wreck
2. Discuss the benets of
shifting from a legal
to a problem-solving
mindset.
Shifting from a legal to a
problem-solving approach
Topic : MEDIATION AS ESSENTIALLY ASSISTED NEGOTIATION
Duration : 45 minutes
Role: Facilitator
OBJECTIVES CONTENT METHODOLOGY
1. Explain the elements of
negotiation.
Elements of negotiation
and mediatable vs. Non-
mediatable cases
Preparation required for
mediation
Levels of difculty in
and the challenges of
mediating a case
Interactive lecture-
discussion
Role- Playing: UGLI EGGS
Exercise
Negotiation template
application
2. Discuss BATNA/
WATNA/MLATNA.
Best/ Worst/Most
Likely Alternatives to a
Negotiated Agreement
59
MODULE 3 : SOCIAL AND CULTURAL CONTEXT IN
MEDIATION
Topic : SOCIAL AND CULTURAL CONTEXT IN NEGOTIATION/
MEDIATION
Duration : 1 hour 30 minutes
Role: Facilitator
OBJECTIVES CONTENT METHODOLOGY
1. Illustrate how an
understanding of the
Philippine cultural value
system can be used to
facilitate negotiation/
mediation.
Philippine cultural value
system
Role play/very short
video, lecturette, with
advanced reading
assignments
Class motivation exercise
(Whats in a Name)
Sharing of experiences
(relationship of names
and socio-cultural values)
Lecture-discussion
Case: Tadiar Foundation
(with worksheets)
2. Discuss socio-cultural
factors in negotiation/
mediation, i.e., class,
gender, education, social
status, age, religion, and
values.
Concept of judicial review.
3. Explain cultural
considerations in
handling emotions
during the negotiation/
mediation processes.
Cultural considerations in
handling various emotions
encountered in the
mediation process
MODULE 4 : CONFLICT MANAGEMENT AND
DISPUTE RESOLUTION
Topic : THE NATURE OF CONFLICT
Duration : 1 hour 30 minutes
Role: Facilitator
OBJECTIVES CONTENT METHODOLOGY
1. Illustrate the nature of
grievance, conicts and
disputes.
Nature of grievance,
conicts & disputes, and
understanding conict
styles
Mini skits (3 scenarios
that are geographically
sensitive in cases that are
general in nature)
Class activities
(unfreezing): exing
muscles, and clapping
hands
-- The objective is to
illustrate the tremendous
amount of physical
exertion needed to
create muscle tension
that could result in pain.
Games:
Daunting Hands
-- The objective is to
demonstrate the taxing
nature of conict, and
the benecial effects of
cooperative effort
Name Game
-- The exercise seeks to
elicit impressions of
conict drawn from their
own experiences and
perception.
Interactive lecture-
discussion with
illustrative examples
(e.g., the Supervisors
Dilemma)
Dealing with Conict
Management: Score
sheet
2. Identify the sources/
causes/levels of
conict and their
effects/consequences/
understanding conict
styles.
Causes/sources/levels of
conict
Effects/consequences of
conict
3. Discuss the bases for
managing conicts and
resolving disputes and
analyzing the interests
of the parties.
Bases for managing
conicts and resolving
disputes
4. Demonstrate different
ways of handling
emotions encountered
in the mediation
process.
Ways of handling emotions
encountered in the
mediation process.
60
MODULE 5 : COMMUNICATION SKILLS AND THE
STAGES OF MEDIATION
Topic : FUNDAMENTALS/OVERVIEW OF COMMUNICATION
Duration : 45 minutes
Role: Communicator
OBJECTIVES CONTENT METHODOLOGY
1. Explain the operational
denition, elements,
and types of
communication.
Denition, elements and
types of communication
Interactive lecture-
discussion
2. Discuss the barriers
to communication in
mediation.
Barriers to communication
in mediation
Topic : THE STAGES OF MEDIATION AND COMMUNICATION SKILLS
Duration : 12 hours 30 minutes
Roles: Facilitator and Communicator
OBJECTIVES CONTENT METHODOLOGY
1. Discuss the objectives,
activities, and expected
results of each stage of
mediation.
Objectives, activities, and
expected results of each
stage of mediation
Lecture, segment role
playing, exercises
Exercises
-- Listening: Nakikinig Ka
Ba?
-- Restating
-- Questioning
-- Reframing
-- Summarizing
2. Practice the following
communication skills
that corresponds to
particular stage/s of
mediation: Active
listening, clarifying,
paraphrasing, restating,
questioning, reframing
positions to interest,
shifting content to
process, validating,
summarizing, non-
defensive responses.
Communication skills
needed for each stage of
mediation
61
MODULE 6 : PARTIES TO THE MEDIATION PROCESS
Topic : PARTIES TO THE MEDIATION PROCESS
Duration : 30 minutes
Role: Facilitator
OBJECTIVES CONTENT METHODOLOGY
1. Discuss the qualities of
an effective mediator.
Qualities of an effective
mediator.
Lecturette
2. Identify the proper roles
of the mediator, parties,
lawyers, and judge in
the mediation process.
Roles of the mediator,
parties, lawyers, and judge
MODULE 7 : THE ADMINISTRATIVE, PROCEDURAL AND
FINANCIAL ASPECTS OF COURT-ANNEXED
MEDIATION
Topic : THE ADMINISTRATIVE, PROCEDURAL AND FINANCIAL
ASPECTS OF COURT-ANNEXED MEDIATION
Duration : 1 hour
Role: Court Offcer
OBJECTIVES CONTENT METHODOLOGY
Illustrate the administrative
structure of courts in
mediation and vital IRR
governing CAM, PMC
organization/structures,
Mediators fund, mediation
in the Philippines, and
mediation rules.
Administrative structure
of courts in mediation
and vital IRR governing
CAM, PMC organization/
structures, Mediators
fund, Mediation in the
Philippines and mediation
rules
Lecture/open forum
62
MODULE 8 : WRITING COMPROMISE AGREEMENTS
Topic : WRITING COMPROMISE AGREEMENTS
Duration : 1 hour
Role: Court Offcer and Communicator
OBJECTIVES CONTENT METHODOLOGY
1. Distinguish
compromises under the
Civil Code, KB Law, and
CAM
Compromises under the
Civil Code, KB Law, and
CAM
Interactive lecture-
discussion, exercises
2. Write a compromise
agreement following
the proper format,
content, and guidelines.
Format, content, and
guidelines
Enforcement problems
63
MODULE 9 : ETHICS IN MEDIATION
Topic : ETHICS IN MEDIATION
Duration : 1 hour 30 minutes
Roles: Role Model and Court Offcer
OBJECTIVES CONTENT METHODOLOGY
As Ofcer of the Court Interactive lecture-
discussion, exercises
1. Explain the mediators
role and responsibilities
as an ofcer of the court
Mediators role and
responsibilities as an ofcer
of the court
As a Professional
1. Recognize mediation as
a profession requiring
training, accreditation
and ethical conduct.
Accreditation process
2. Apply ethical standards
in evaluating the
compromise agreement
and the conduct of the
mediator.
Mediators Code of Ethics
3. Illustrate some ethical
dilemmas that the
mediator might face.
Mediator ethical dilemmas
MODULE 10 : PRACTICUM WITH SYNTHESIS
64
DAY 1
8:00 am Registration
8:30 am Opening ceremonies
Philippine National Anthem
Ecumenical prayer

Welcome remarks
9:00 am The Philippine judicial system: an overview
At the end of the session, the participant should be able to:
1) illustrate the structure of the Philippine Judicial system;
2) explain the concept of judicial review;
3) explain the concept of access to means of resolving disputes; and
4) describe the concept of rights and obligations.
9:45 am Alternative Dispute Resolution (ADR)
At the end of the session, the participant should be able to:
1) relate the rationale of the ADR movement;
2) describe the big picture of dispute resolution;
3) discuss the advantages of ADR over judicial resolution;
4) distinguish mediation from litigation;
5) discuss standards to determine appropriateness of ADR or judicial
resolution; and
6) describe the indigenous models of confict disentanglement.
10:30 am Legal versus problem-solving mindsets
At the end of the session, the participant should be able to:
1) illustrate how the legal mind differs from the problem solving mind; and
2) discuss the benefts of shifting from a legal to a problem-solving mindset.
11:15 am Mediation as essentially assisted negotiation
At the end of the session, the participant should be able to:
1) explain the elements of negotiation; and
2) discuss BATNA/WATNA/MLATNA.
12:00 noon LUNCH BREAK
1:00 pm Social and cultural context in negotiation/mediation
At the end of the session, the participant should be able to:
1) illustrate how an understanding of the Philippine cultural value system an
be used to facilitate negotiation/mediation;
65
2) discuss socio-cultural factors in negotiation/mediation , i.e., class, gender,
education, social status, age, religion, and values; and
3) explain cultural considerations in handling emotions during the
negotiation/mediation processes.
2:30 pm Confict management and dispute resolution
At the end of the session, the participant should be able to:
1) illustrate the nature of grievance, conficts & disputes;
2) identify the sources/causes/levels of confict and their effects/
consequences/understanding confict styles;
3) discuss the bases for managing conficts and resolving disputes and
analyzing the interests of the parties; and
4) demonstrate different ways of handling emotions encountered in the
mediation process.
4:00 pm Overview/fundamentals of communication
At the end of the session, the participant should be able to:
1) explain the operational defnition, elements, and types of communication;
and
2) discuss the barriers to communication in mediation.
4:45 pm END OF DAY 1
DAY 2
8:15 am Recap of Day 1
8:30 am The stages of mediation and communication skills
(1st stage of mediation Mediators Opening Statement)
At the end of the session, the participant should be able to:
1) discuss the objectives, activities, and expected results of each stage of
mediation; and
2) practice the following communication skills that corresponds to particular
stage/s of mediation: active listening, clarifying, paraphrasing, restating,
questioning, reframing positions to interest, shifting content to process,
validating, summarizing, non-defensive responses.
12:00 noon LUNCH BREAK
1:00 pm The stages of mediation and communication skills
(2nd stage of mediation Parties Opening Statements
3rd stage of mediation Joint Discussion and Identifcation of Issues)
66
5:00 pm END OF DAY 2
DAY 3
8:15 am Recap of Day 2
8:30 am The stages of mediation and communication skills
(4th stage of mediation Impasse and Caucuses
5th stage of mediation Joint Negotiation)
12:00 noon LUNCH BREAK
1:30 pm The stages of mediation and communication skills
(6th stage of mediation Closure)
3:00 pm Parties to the mediation process
At the end of the session, the participant should be able to:
1) discuss the qualities of an effective mediator; and
2) identify the proper roles of the mediator, parties, lawyers, and judge in
the mediation process
3:30 pm The administrative, procedural and fnancial aspects of court-
annexed mediation

At the end of the session, the participant should be able to illustrate the
administrative structure of courts in mediation and vital IRR governing
CAM, PMC organization/structures, Mediators fund, mediation in the
Philippines, and mediation rules.
4:30 pm Writing compromise agreements
At the end of the session, the participant should be able to:
1) distinguish compromises under the Civil Code, KB Law, and CAM; and
2) write a compromise agreement following the proper format, content,
and guidelines.
5:30 pm END OF DAY 3

DAY 4
8:15 am Recap of Day 3
8:30 am Ethics in mediation
A. As offcer of the court
67
At the end of the session, the participant should be able to explain the
mediators role and responsibilities as an offcer of the court.
B. As a professional mediator
At the end of the session, the participant should be able to:
1) recognize mediation as a profession requiring training, accreditation and
ethical conduct;
2) apply ethical standards in evaluating the compromise agreement and the
conduct of the mediator; and
3) illustrate some ethical dilemmas that the mediator might face.
10:00 am Integrative demonstration play/video presentation and role plays
analyses and discussions
12:00 noon LUNCH BREAK
1:00 pm Continuation of Integrative demonstration play/video presentation
and role plays/analyses and discussions
5:30 pm Synthesis and accreditation process including internship
6:00 pm CLOSING CEREMONIES
Distribution of certifcates of attendance
Class picture taking

Source: Integrated Basic Mediation Course (One of seven Resource Handbooks for the Mediation Training
Programs of the Philippine Judicial Academy, May 2006)
Instructions to Participants:
All participants must be seated in the lecture room ten (10) minutes before the session
starts.
a. All participants must sign the attendance sheet.
b. Attendance in all the sessions is obligatory. Failure to register on time,
tardiness, discontinuous or interrupted attendance in any lecture or session, will
disqualify a participant from receiving the Certifcate of Attendance.
c. Undivided attention during sessions is required.
d. Cell phones must be turned off or put on silent mode.
68
APPENDIX B-2 : JUDICIAL DISPUTE RESOLUTION COURSE
MODULE 1: CONFLICT: NATURE AND SOURCES, ELEMENTS
AND DYNAMICS, BASES FOR RESOLVING
CONFLICT
Topic: Confict: Nature and sources, elements and dynamics, bases for
resolving confict
Duration: 1 hour
SPECIFIC OBJECTIVES CONTENT METHODOLOGY
Explain the nature and
sources of conict
Illustrate the socio-
cultural factors, elements
and dynamics in conict
resolution
Explain the different bases
for resolving conict.
Nature and sources of
conict
Socio-cultural factors,
elements and dynamics in
conict resolution
Different bases for
resolving conict
Interactive lecture with
exercises
Case analyses
69
MODULE 2: PARADIGM SHIFT IN THE JUDICIAL ROLE/JDR
Topic: Paradigm shift in the judicial role/JDR
Duration: 1 hour 45 minutes
SPECIFIC OBJECTIVES CONTENT METHODOLOGY
Relate the history of JURIS,
CAM and JDR
Discuss the need for CAM
Discuss the new roles of
judges in JDR
Relate ADR/JDR with the
concept of justice
Describe the change
process involved in
introducing and pilot
testing JDR
Demonstrate the paradigm
shift from adversarial to
conciliatory approaches in
JDR
Distinguish between
rights-based and
interest-based conict
resolution strategies and
interventions.
JDR history, change process
Adversarial to conciliatory
approach
Rights remedies to interest-
based approach
Legal position to problem
solving
Interactive lecture with
exercises
70
MODULE 3: ADVANTAGES/BENEFITS OF JDR
Topic: Communication in JDR/Neutral evaluator
Duration: 5 hours
SPECIFIC OBJECTIVES CONTENT METHODOLOGY
Describe the
implementation of JDR in
the Model Court sites in
the Philippines
Implementation of JDR in
Model Court sites in the
Philippines
Testimonials, sharing of
experiences as JDR judges,
litigants, lawyers of litigants
MODULE 4: COMMUNICATION IN JDR/
NEUTRAL EVALUATOR
Topic: Communication in JDR/Neutral evaluator
Duration: 5 hours
SPECIFIC OBJECTIVES CONTENT METHODOLOGY
Demonstrate the role of a
judge in the JDR process
(e.g., opening statement,
caucusing, moving
discussions from positional
bargaining to surfacing
interest, generating
options, etc.)
Demonstrate
communication skills in
relation to stages of JDR
Demonstrate the process
of JDR
Explain the concept of the
neutral evaluator
State the goals that can be
accomplished in neutral
evaluation
Analyze the guidelines in
performing the role of an
early neutral evaluator
Role of the judge in the
JDR process
Communications skills in
JDR
JDR process
Neutral evaluator goals,
guidelines
Interactive lecture
Caselettes
71
MODULE 5: ETHICAL ISSUES/LOOKING FORWARD
Topic: Ethical issues/looking forward
Duration:
SPECIFIC OBJECTIVES CONTENT METHODOLOGY
Discuss ethical issues in
JDR
Explain the existing and
proposed JDR rules
Ethical issues in JDR
Existing and proposed JDR
rules (SC handouts)
Interactive session
72
DAY 1
8:00 am Registration
8:30 am Opening ceremonies
Philippine National anthem
Ecumenical prayer for the courts
Welcome remarks
9:00 am Training Objectives and Activity Flow
At the end of the session, the participant should be able to illustrate the
framework of the course.
9:15 am Confict: Nature and Sources, Elements and Dynamics, Bases for
Resolving Confict

At the end of the session, the participant should be able to:
1) explain the nature and sources of confict;
2) illustrate the socio-cultural factors, elements and dynamics in confict
resolution; and
3) explain the different bases for resolving confict.
10:15 am Paradigm Shift in the Judicial Role/JDR
JDR history, change process
Adversarial to conciliatory approach
Rights remedies to Interest-based approach
Legal position to problem solving
At the end of the session, the participant should be able to:
1) relate the history of JURIS, CAM and JDR;
2) discuss the need for CAM;
3) discuss the new roles of judges in JDR;
4) relate ADR/JDR with the concept of justice;
5) describe the change process involved in introducing and pilot testing JDR;
6) demonstrate the paradigm shift from adversarial to conciliatory
approaches in JDR; and
7) distinguish between rights-based and interest-based confict resolution
strategies and interventions.
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12 noon LUNCH BREAK

1:00 pm Advantages/benefts of JDR
testimonials, sharing of experiences as JDR judges, litigants, lawyers of
litigants (10-15 testimonials)
At the end of the session, the participant should be able to describe the
implementation of JDR in the Model Court sites in the Philippines.
Exercise: The Proposal
5:00 pm END OF DAY 1
DAY 2
8:00 am Recap of Day 1
8:15 am Communication in JDR/Neutral Evaluator
At the end of the session, the participant should be able to:
1) demonstrate the role of a judge in the JDR process (e.g., opening
statement, caucusing, moving discussions from positional bargaining to
surfacing interest, generating options, etc.);
2) demonstrate communication skills in relation to stages of JDR;
3) demonstrate the process of JDR;
4) explain the concept of the neutral evaluator;
5) state the goals that can be accomplished in neutral evaluation; and
6) analyze the guidelines in performing the role of an early neutral evaluator.
12 noon LUNCH BREAK
1:00 pm Communication in JDR/Neutral Evaluator
Exercises: Fishbowl, Dead Palm Trees, Tela Mart case
AFT materials (6 cases)
Compare Canadian model and Filipino model
Ethical Issues in JDR/Looking Forward: SC Guidelines (handouts)
After reading the handouts, the participant should be able to:
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1) discuss the ethical issues in JDR; and
2) explain the existing and proposed JDR rules.
4:30 pm CLOSING CEREMONIES
Distribution of certifcates of attendance
Class picture taking
Source: Training Course for Judges in Judicial Dispute Resolution (One of seven Resource Handbooks for the
Mediation Training Programs of the Philippine Judicial Academy, May 2006)
Instructions to Participants:
All participants must be seated in the lecture room ten (10) minutes before the
session starts.
a. All participants must sign the attendance sheet.
b. Attendance in all the sessions is obligatory. Failure to register on time, tardiness,
discontinuous or interrupted attendance in any lecture or session, will disqualify a
participant from receiving the Certifcate of Attendance.
c. Undivided attention during sessions is required.
d. Cell phones must be turned off or put on silent mode.
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APPENDIX C: SAMPLES OF CASELETTES FOR ANALYSIS
CASE #1 :
Lourdes Mangila is a respondent in a case of ejectment fled against her by her landlord.
She and her three kids aged 10, 9, 7, have been living in the apartment for sometime, which
she has failed to pay for the past nine months. Her husband has stopped remitting his
support for her and her kids, and she has not found any job yet that could make her pay
for the monthly rental. Caloy Cruz, the complainant, is offering the option to Lourdes of
either leaving the apartment unit or paying him rent for the past six months. Lourdes has
refused both options. Upon inquiry, she refuses to vacate the apartment as this is the place
where her children feel safe and secure when she leaves them on their own when she goes
out for an errand. Meanwhile, Caloy has become impatient with Lourdes, and aggressive
in his behavior towards her. According to him, he couldnt care less about her husbands
abandonment of them, nor about her childrens feeling of security. All he wants is to get his
money, or get his apartment unit back.
CASE #2 :
Susan fled for support from her estranged husband. They have been married with no
children for the past fve years. Susan works in Hongkong as domestic helper since they
got married, and has been remitting money to Pedro, her husband. Recently, she found out
that Pedro has not only taken her best friend as his mistress, but has used up all their savings
from her remittances. She knows this because she has kept a close accounting of all her
savings and their monthly expenditures.
Pedro is jobless and openly admits he is cheating on Susan. At one point during the
mediation, he started shouting invectives at Susan, asking her why she insists on keeping
their marriage when he does not love her anymore. And that he cannot give support
because he himself is jobless and has no source of income. Susan, very quiet but looking
very hurt but determined, refuses to look at her husband and just directs all her answers and
questions to the mediator. She refuses to budge from her position of getting her husband to
support her.
CASE #3 :
Sheila and Tony have been married for the past ten years. They have two children, a
daughter aged 8 years old and a son 7 years old. Sheila has been working as a nurse in the
USA for the past 6 years and has been remitting money to Tony. Recently she found out that
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Tonys use of drugs has become addictive and he practically throws away all the money for
drugs. She has stopped remitting money to him and instead coursed the money through her
younger sister, to provide for the needs of their two children. She has fled for annulment
of marriage. Meantime, her case for custody of her son, whom Tony has taken away from
Sheilas sister is being mediated. Her son however has parental alienation syndrome with his
mother and refuses to leave his father even if it would mean dropping out of school (which
he did, to join his father in Manila for drug rehabilitation) and most recently, refused to leave
his father in jail (Tony was imprisoned for illegal possession of frearms).
CASE #4 :
Pablo and Marissa have been married for the past 5 years. They have 2 children. Pablo
works abroad and in the beginning he was remitting P30,000 a month for support. The
past 2 years, he reduced it by half. Until recent months, no amount has been provided
Marissa. Recently, Marissa found out that Pablo has taken another woman and has a child by
her. During mediation, Pablo tells Marissa that he refuses to support her and her children
because she has found work anyway which can well provide for her and the children.
Besides, according to him, he does not love her anymore and has another family to support.
Marissa asks for P80,000 a month for support.
GUIDE QUESTIONS FOR DISCUSSION
1. What are the gender issues and concerns manifest in this case?
2. What sources or areas of power is there imbalance between the parties involved?
What scenarios do you foresee where these imbalance can be manifest? As mediator,
how best do you respond and address them?
3. How do you think does a gender-sensitive mediator behave and speak in managing
this situation?
4. Considering the gender issues and concerns arising from the case, what would you
think is a gender-responsive compromise that the two parties can agree on?
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