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Strengthening the Use of Mediation in Public Land Disputes in DENR

by Rachel Aquino

GIZ-LMB Training
10-day EDRMP Training

Land disputes remain one of the most common sources of conflicts in the Philippines.

The Land Management Bureau of the Department of Environment and Natural Resources recognizes the importance of their mandate in resolving public land disputes. It engaged MedNet as consultants to comment on a Manual on Alternative Dispute Resolution for Public Land Disputes, review the various Department Administrative Orders (DAOs), relating to ADR, design a roll-out training for Alternative Dispute Resolution Officers (ADROs), and write a consultancy report documenting lessons learned from the Manual and the roll-out training.

The Training on Alternative Dispute Resolution in Public Land Disputes was conducted from January 23 to February 3, 2023. The direction to conduct the training came about after discussions on a review of the ADR Manual, and an assessment of the readiness of the ADROs to use the manual. Participated in by 23 participants from Regions 1, 2, 3, 4A, 5, 6, 7,8, 10, 11, 13 and the National Capital Region, there were five OADR accredited Trainers who were present from beginning to the end of the training. The sessions were conducted with a mix of lecture, role play, games, videos, debate, and reflections.

While the goal of the training was to mainly develop the ADROs’ know-how in mediation, and related topics plus build their skills- both technical and people skills- in applying the sessions’ learnings by doing mediation role-play, an important aspect of the training was also to establish a particular way of doing things that would help them become more effective in their work.

The training framework operationalized in the 10 day-session was “Learning by Doing”, with several case work and workshops distributed throughout the sessions, and an assessment every end of the role play that looked into each step of the mediation process done by the mediator. The opening, the facilitation on the issues and concerns of the parties, the problem-solving process, and the closing, the identified strengths and gaps were discussed both as a group and in plenary.

This mixed approach presented a diverse set of training methodologies for the ADROs, helping build their capacity to plan, research, execute the processes, facilitate communication and engagement between both parties better, understand more clearly conflicting interests according to specific needs, and consequently mediate from a more wholistic lens as part of building their readiness to use the manual, and give inputs on how it can help them better. With the discussions on actual field situations during role plays, the participants were able to validate which portions in the ADR manual would be both useful and relevant, and which sections needed more detail or improvements. The discussions naturally led to how the DENR Guidelines on ADR could be improved, and how specific topics could be added or detailed more.

Following are the recommendations of the Training Team in relation to building the capacities of our ADROs in mediation, and related skills:

1. Standardize the training of ADROs.

The following should be among the targets of their training:

a) Strong theoretical knowledge of ADR for better appreciation of the various tools, approaches and techniques that they can use in doing their ADR work;

b) Mastery of DENR’s ADR policy framework DENR as well as other statutes that might affect the process and legality of their mediation work;

c) Sharp conflict diagnosis skills, including conflict mapping skills, that will enable them to better appreciate and analyze the subjects and objects of the issues referred to them, and select the best or most appropriate conflict management/resolution methodologies/approaches to employ. This will also sharpen their research skills;

d) Improved communication and facilitation skills, that will enable them to conduct their ADR work with more clarity in language and process. Relative to this, it is important that the language used in ADR proceedings are non-violent, gender sensitive, culturally apt, in any way not discriminatory, and resolution driven;

e) Keen facilitation and probing skills, that will enable them to probe deeper into issues, especially complex ones. Active listening should be an indispensable part of this.

2. Strengthen the M&E System.

The ADR-MRS established by DMC 2021-03 is a good start. However, as observed by the trainees, it is not yet user-friendly. This needs to be revisited. In addition, it is important that mediation practices, especially best practices, employed by ADROs be documented so as to enrich the body of knowledge in ADR practice of DENR. In line with this, it will be important to monitor how the participants in this training are using the knowledge and skills imparted to them in this particular training so as to determine the usefulness of these knowledge and skills, and what else needs to be sharpened or added.

In relation to DAO 2005-18, there is need to assess the effectiveness of ADR in DENR to determine whether the ADR techniques used are effective. Also, information in the DENR website reveals that the batting average of case resolved is between 45% and 60%. There is, therefore, a need to continuously implement training programs on ADR.

3. Revise the ADR Manual.

The trainees commented that the ADR Manual will be most useful if it actually points them to the direction/s they should take given specific situations. There are also comments that the physical appearance (layout and design) of the ADR Manual needs to be more reader-friendly. Another interesting input of the trainees is the development of three reference materials on ADR that will serve specific purposes, to wit:

(1) the ADR Manual, which contains the process and the steps of what ADROs need to do;

(2) a handbook, which should be a guide for the public who avail of ADR services; and,

(3) a brief or record, which shows the accomplishments of ADROs in specific cases.

As for the inputs and recommendations on the DENR ADR manual, DAO 2016-30 and related issuances, following are some highlights of points raised by the ADRO participants:

1. The LMB ADR manual needs to include operational procedures so that there is no room for confusion. It also needs to improve its lay-out and design to make it more reader-friendly. The Principles of ADR need to be expanded for a better understanding and contextualization of its role and relevance in the resolution of conflicts.

2. Voluntary and mandatory mediation under different stages and levels need to be clarified while the order of the compromise agreement, order of settle agreement, effectivity, finality and grounds to question order of agreement need to be reviewed.

The appeal process should be streamlined. ADR forms should also be revisited to make them consistent with the provisions of the DAO. This DAO needs to be harmonized with the policies of DAR and NCIP.

3. It terms of the ADR-MRS, there is need to review and update it to help assess the status of ADR cases. This is supposed to be institutionalized, and all cases should be entered into the database. When an ADRO transfers location, there is no scanner making it difficult to ensure inputting of all cases in database. Once a case is received, one needs to input in the ADR-MRS within 30 days then submit for resolution. There is a turn-around time which requires ADROs to check regularly lest they exceed the 30-day limit. The challenges in the Monitoring system need to be addressed. There is no account in PENRO and no IT person assigned, who can help ADROs to access if there is a transfer of location. Usually, regional offices do trouble shooting and field offices have no internet. An actual scanner is needed because phone scanners are not allowed. There is need to allocate budget for this. Even when case has already been referred, it is still retained with ADRO in database. We can get best practices of MGB in database management. Perhaps we should put in place a barcode and watermark for document protection.

4. For DMC 2021-01, there is need to complete pool and capacitate; clarify role of ADR officers and land investigation officers. We need to understand why a Land investigator can do arbitration but an ADRO cannot.

5. In relation to DAO 2005-18, there is need to assess the effectiveness of ADR in DENR to determine whether the ADR techniques used are effective. Also, information in the DENR website, the batting average of case resolved is between 45% and 60%. There is, therefore, a need to continuously implement training programs on ADR.

6. In relation to DAO 2016-03, there is need to think about the wisdom of applying ADR to a wider menu of cases, e.g., disputes related to land surveys, political boundary surveys (especially considering IRA), tenurial instruments (e.g., IFMA, CBFMA, FLA, FLUA).

7. There is also need to assess the applicability of mediation in the mining, forestry and other ENR sectors. There is need to harmonize these systems as the intervention used in mining is still arbitration. Mediation needs to be done before arbitration. LMB is very active in pushing ADR in land management. This needs to be supported in the regions.

8. More registration of titles should be encouraged, and resolved cases with the benefits to the parties must be included in a brief. There should be three reference materials for ADR: the manual which presents the process and the steps of what ADROs need to do, the handbook which should be a guide for the public so that they know what needs to be done in similar conflicts needing the help of ADROs, and the brief which shows the accomplishments of ADROs in terms of specific cases resolved.

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