EASING THE PAINS OF BATTLE Spare families from court cases. Mediate! Š2013 Maria Gracia de V. Riùoza- Plazo Published and distributed by Paulines Publishing House Daughters of St. Paul 2650 F.B. Harrison Street 1300 Pasay City, Philippines E-mail: edpph@paulines.ph Website: www.paulines.ph Cover design by Ann Marie Nemenzo, FSP All rights reserved. No part of this book may be used or reproduced in any manner without written permission of the publisher. 1st printing 2013 ISBN 978-971-590-760-6
at the service of the Gospel and culture
CONTENTS Preface
7
An Offering
8
The Author In Our Family Advocacy
10
Foreword
15
Section I: A Canvass for Peace Chapter I: Ingenious Resolutions Chapter II: The Law Is Clear Chapter III: Before Churning on Live Coal Chapter IV: Stop a Heart from Breaking Chapter V: A Simple Case: For Support Chapter VI: Limited Panacea Chapter VII: Intimate Feud Chapter VIII: Why Litigate? Mediate!
21 21 31 37 39 44 47 50 66
Section II: Spouses on the Mediation Table Chapter I: Work Is a Demanding Mistress Chapter II: Bridging Love Chasm Chapter III: The Faรงade Chapter IV: Forgiving Heals
78 78 114 170 194
Section III: Siblings/Co-Heirs/Cousins Fight Chapter I: Squabble on the Board Chapter II: Condo Family Dispute Chapter III: Battle of the Heirs
199 199 208 211
Section IV: Beyond Ordinary Mediation Chapter I: In-Law = Out-Law Chapter II: Carnage in the Home Chapter III: Battering Galore Chapter IV: A Husband in Tatters
226 226 236 242 252
Chapter V: Elders as Peacekeepers Chapter VI: A “Dead” Ly Sex
271 274
Section V: Republic Act 9262 “Anti-Violence Against Women And Children Act”
279
Section VI: Taking A Closer Look
282
Appendices
287
Foreword By A Lawyer Who Doesn’t Like To Sue
I
am a lawyer who doesn’t like to sue. In my practice, litigation is reserved only for situations where it is the only avenue left for the redemption of the parties involved. Whenever a client comes, my policy is to propose an amicable out-of-court settlement by mediating between the parties. Reconciliation is mediation’s aim. It holds parties together again or helps them separate as friends. Most of the parties I mediated were spouses going through conflicts serious enough for the parties to consider legal actions. Many of these couples exhibited reluctance over breaking their families apart. Much less, use the strong arm of the law against each other, to protect their rights. They had a glimpse of the transcendent quality of a family. They had been enchanted by the charm of a family setting. They would rather cling unto each other and continue with their journey of loving, forgiving, and nurturing one another. There were instances, however, when only separation could bring about salvation; when spouses have to be broken apart to render each of them whole. A mediator leads the parties through the path of peace. Mediation works only if the parties in conflict are ready to open themselves to each other and to a third party/mediator and are willing to work toward a resolution of their differences. The ideal objective of mediation is reconciliation, as in forgiving and accepting each other. However, reconciliation may not always result in the parties going back into each others arms again. It also covers separation, on friendly terms. If separation is inevitable, family mediation lawyering can help 15
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avoid unnecessary quarrelling in court, as extensions of battles in the home. In this case, mediation hopes to bring about forgiveness. Reconciliation then becomes an act of forgiving and letting go. In all conflicts–more especially those involving family members–pain is an unavoidable component. Breaking a family apart is like cutting a pulsating heart into pieces, or severing a nerve–that which contains cherished memories–from the brain. A marriage counselor compares a battered wife getting out of a hellish marriage to a rabbit trapped in a cage. The illfated creature needs to cut off a leg to set itself free. One of the mediator’s tasks is to ease the pains of this bloody surgery. “Easing the Pains of Battle” contains a sprinkling of cases that cover a broad range of causes of a family conflict. It touches on spousal conflict caused by infidelity, abuses of all forms, serious incompatibility, indifference, insensitivity, and extreme selfishness. One common cause of family problems is immaturity manifested in the lack of the capacity to face a problem, and an inability to engage in a dialogue toward a solution. One mediation process involves a family dispute over an inheritance; it is still ongoing. One case involved a family corporation where the owners were engaged in a cold war. This kind of in-fighting literally leaves family members frozen into inaction. There were instances when psycho-spiritual-legal counseling was rendered as when mediation was not possible for one reason or another. Certain encounters by the author that left deep impressions were included, with the hope that they, too, may also instruct, enlighten and/or inspire. The names of the parties were changed; certain circumstances were altered if necessary, to protect the privacy of those involved. Parties included in this project were consulted and 16
Foreword
their approval secured. They were willing to share their lives– though not their identity–hoping their experiences can help lessen the pains of fighting or minimize the possibility of quarrels, especially at the heart of every home. At least one wife was willing to be known publicly but the author considered it damaging to the reputation of the husband and decided against her transparency. In most cases, the issues involved were quite simple; the remedies were not complicated at all. Unfortunately, an ordinary case could be dragged into a debilitating stand-off by pride and personal resentment. And, bonds can be deformed and twisted into convoluted nuts and bolts by emotional entanglements. A distraught mother came for some consoling words. Her most affectionate son has suddenly turned vicious to her as soon as he started getting involved in romantic relationships. The son could only see excellence and beauty with every one of his girlfriends. His mother, who unceasingly loves him dearly, becomes a bitch and villain; with her every honest but unpleasant remark, on any of his young loves. Romance indeed has a way of twisting otherwise normal mind; his son’s case may be one of temporary insanity which hopefully can go away in time. Another case is more heartbreaking and can be quite common as well. The viciousness against the mother acquires permanence and the fiancée joins-in, verbally abusing the mother for all displeasures–real or imagined–caused them. In the latter, the mother had to step out of the way and leave the young couple alone in their own exclusive world. The mother continues to pray and offer her every teardrop for the success of their relationship. This ungrateful son and his fiancée remind me of a daughter whose own mother feared, for her daughter’s cruelty toward her. After graduation from college, she left 17
Easing the Pains of Battle
for the United States for a short vacation. Her mother keeps praying and wishing she find a job abroad and never come back home. I have observed these sons and daughters for they are children of friends. I had to concede, I was not competent to help except to entrust the task to the Lord, the greatest Mediator of all. I felt helpless, as well, in one extraordinary case where the aggrieved wife refused to die; she hung on to her dear life to be able to forgive her erring husband. In fact, she came back to life to bless her husband with her forgiveness. Parties similarly situated may learn a lesson or two from the manner conflicts were addressed. They may see in all the love stories and disillusionments, their own sense of betrayal and defeat; their struggle to overcome and forgive; and some bits of success in empowerment. Readers can imbibe as well the lessons other people learned; some in a most excruciating manner. Hopefully, the selfless sacrifices of hurting individuals may inspire others; the courage exhibited by some may spur another to rise above adversities; the strength they mustered to start a new life may embolden readers to overcome a freezing fear of change. Anyone who wishes to extend a helping hand to other hurting spouses may benefit from these experiences, from both the successful processes as well as from those which failed. From successes, beneficial insights can be acquired; from failures, lessons on how to avoid pitfalls may be learned. Every case attempts to take a deeper look at conflicts, not in the highfalutin language of a scholarly treatise but in the ordinary language of day-to-day experiences. The process can give clues on how conflicts can be avoided in the first place. Each case was mediated to help parties resolve disputes with the least of pain, through better understanding of each 18
Foreword
other and of the nature of their conflicts. Psycho-spiritual-legal counseling was undertaken, where mediation was not possible; either, because of the absence/unwillingness of the other party or because the case is “non-mediatable”. The inclusion of provisions of the Canon and Civil Laws and some discussions thereon is meant to give the readers a complete picture of the factors taken into consideration, in the resolution of the issues. The legal and canonical discussions are superficial. These are not intended to provide comprehensive legal, moral or theological guidelines even to those similarly situated. Within the present judicial structure, Family Courts have been organized. On top of this, the Philippine Supreme Court has established a Supreme Court-supervised court-annexed mediation process. The latest innovation is the “Judicial Dispute Resolution” or JDR. The JDR judges who are JDRtrained Regional Trial Court (RTC) judges use their moral ascendancy and act as conciliators between litigating parties. Also on the frontline of mediation is the Barangay ( literally, village - smallest unit of government) conciliation system provided for by the Local Government Code. Taken together, the above provides a good beginning, but more needs to be done. The mediation approach is generalized; it is not specifically directed at family situations. The training of the staff is not in-depth enough. The Family Courts are still governed by the same set of rules that can render family litigation very adversarial. In its own territory, the Catholic Church Marriage Tribunal is performing exclusive trials and resolutions in line with its pastoral work. While the civil courts are enjoined to give weight to the decisions of the Catholic Church Marriage Tribunal on same issues such as those involving Art. 36 of the Family Code 19
Easing the Pains of Battle
on psychological incapacity, these decisions are not binding on the former. This creates a double boiler for spouses in need of dissolution of their marriage. My dream is that one day, a signature institution may arise which could address family disputes in a more humane, peaceful, and all-encompassing manner. Hopefully, the Civil Courts, the Marriage Tribunal of the Catholic Church and other institutions with similar functions, can pool their efforts together, to streamline legal separation/annulment/nullity cases; and provide efficient counseling, mediation and healing processes, for the spouses and their children.
20
SECTION I
A CANVASS FOR PEACE
M
CHAPTER I Ingenious Resolutions
odern-day families have more reasons to fight. And they have become more open about it. Family dust is less and less being swept under the rug; rather, soiled family linen is laundered in court and aired in media. Wife vs. husband, child vs. parent, and sibling vs. sibling have become regular court fare. Lawyers are having a hay day. The appetite of the nosy public is whetted to its heart’s content. Family court judges find themselves in a quandary. To address such emotionally charged cases, courts are challenged to balance stoic logic with a touch of compassion. Firm, the courts must be, but nurturing as well. Just like in a family! Settling family disputes effectively in court is easier said than done. Ask anyone who handled a custody case which dragged on for ten years to its bitter conclusion. Watch the wrenching cross examination of a spouse in a nullity case accusing the partner of active homosexuality, pathological lying or gross abuse. Listen to a mother in direct testimony, pleading for support from a stingy father, for their sick child’s medication. How do we stop the battle? What court order can ease their pain? The need for creative innovations in settling dispute is becoming more and more keenly felt in the family setting. In and out of the home, change is taking place at dizzying speed. Family life is undergoing transformation brought about by several factors. Economic needs and trends, individual pursuits, increasing choices, changing lifestyle, technological 21
Easing the Pains of Battle
advancement, scientific findings, advanced research in human behaviour, globally connected media, and a shrinking world, are among the factors affecting family life. While these developments can bring about progress, they can also bring about conflicts among members of the same family. For instance, separation of spouses caused by the Overseas Filipino Workers (OFW) phenomenon spawns loneliness and causes breakdown of families. Neither “balikbayan” boxes nor “SMS” or “Chat” can bridge the chasm caused by physical absence. Loneliness breeds infidelity. The most daunting sociomoral cost of OFWs is the breakdown of families. Separation and /or uprooting of families via migration bring about upheavals swamping the members with evolving difficulties. These affected families have special needs Institutions like schools, religious congregations, government agencies, churches and civic groups need to adapt their attitude toward family growth through intervention skills, for the survival and progress of the family. Through a more creatively appropriate approach, they can guide and assist the family unit at every turn of social evolution. The process of family-dispute resolution must take into account the specific needs of individual members simultaneously with the welfare of the family and the nation as well. Disputes afflicting its members require special treatment. A humane resolution of family disputes needs social and psychological scientists with special skills adapted to a specially engineered structure. This family-dispute settlement system needs to take into consideration the psycho-spiritual, social, moral and economic development taking place in the home, the nation and the world, even as it upholds the supremacy of an individual’s basic right to happiness. 22
Section I: A Canvass For Peace
Settling family disputes requires not only the most careful legal attention, but a willingness to explore new routes. A style of conflict resolution more civil than what is normally found in our courts may yet save the friendship among family members, if not the family bond. Family dispute settlement requires a study of human beings as an intricate creation, possessed of both temporal and spiritual attributes. People in conflict situations pose the greatest challenge to peaceful and productive handling, especially when the dispute is between and among members of the same family. In such situations, the primary objective should be reconciliation via the art of mediation. Thich Nhat Hanh2 gives a simple, easyto-follow reminder: “Reconciliation is to understand both sides; to go to one side and describe the suffering being endured by the other side, and then go to the other side and describe the suffering being endured by the first side.” This is a classic approach and remains to be most effective. It sounds easy and simple enough until you find yourself between two warring camps. Then you realize that a deeper understanding of the parties and of yourself would have to come into play in your attempt to broker peace. A lot more is required when the warring parties are mandated by laws– both human and Divine–to love each other in a unique way, as spouses, or one another, as members of the same family. Dynamics of conflict between people intimately intertwined can be an intricate labyrinth into an intermingling psyche. The welfare of the individual and society at large demands no less. The family is a socio-spiritual entity. At the very least, it is an inviolable institution and the foundation of society, as 2. Thich Nhat Hanh is a Vietnamese Buddhist monk. During the war in Vietnam, he worked tirelessly for reconciliation between North and South Vietnam. His lifelong efforts to generate peace moved Martin Luther King, Jr. to nominate him for the Nobel Peace Prize in 1967.
23
Easing the Pains of Battle
civil law provides. Peace in the home front contributes to the harmony in the wider community of humankind. The tremor in the foundation can reverberate throughout the whole structure. For this reason, the importance of institutionalizing a more civil, less adversarial and above all, a compassionate system of family-dispute resolution, cannot be over emphasized. This is where family mediation comes in; as a built-in component of, if not an alternative to, court litigation. The immediate aims of mediation lawyering are bridging gaps, facilitating understanding by making spouses listen to one another and seeing each other’s objective reality, recapturing peace among families in conflict situations and forging a mutually satisfying agreement between the parties. A third party is a big help when conflict sets in. Spouses who are convinced that their marriage is dysfunctional and staying together will do more harm than good can be led through the remedies under the law via a more peaceful avenue. Every normal person prefers peace. Unfortunately, no matter how we vie for peace at all times, conflict cannot be avoided. Ironically, conflict arises most of the time from the basic need of every creature for a full flowering or completion. In the pursuit of happiness or perfection, each one is motivated by varying goals, different methods, and divergent behavior. In such pursuit, one’s move may clash with that of another; hence, the conflict. A case in point is the issue of the Filipino male’s standard of machismo. He considers having several women a measure of virility and thus a badge of honor. This runs roughshod on fidelity, as the norm of marriage for women and in a decent society itself. In such a situation, the conflict that arises is serious enough to break a marriage apart. Especially so, because infidelity attacks the very sanctity of marriage. Another common source of family battle is the patriarchal and utilitarian concept of being head of the family. This malady 24
Section I: A Canvass For Peace
afflicts many husbands and fathers. Some Filipino parents tend to consider children as lesser mortals or possessions they can manipulate, to their own satisfaction and ego-tripping. Patriarchal husbands exhibit similar attitude toward their wives. Such exploitative and chauvinistic style wrecks havoc on the basic human rights to dignity of every child and woman. This is not to discount matriarchal disposition; it is equally a form of oppression and a source of family conflicts. Not the least among these sources of conflict is the close family ties in the Filipino culture. While considered a source of strength of the family system, it can be a cause of many a split among young spouses who cannot balance their loyalty to their original family with their duty to give priority to the new family they are starting to build. A worse case, bizarre is the right word, was that of a husband who preferred to sleep in his widowed mother’s room on his wedding night. And continued to do so from time to time twenty years into his marriage, when the wife decided enough is enough. She suspected incestuous relationship between the mother and son. One evening she chanced upon them in “motherly” embrace. Instead of confronting the mother and son, the wife walked out of their life. During our legal conference she declared with pained sense of triumph: “I now search for love in justice. I really never experienced love in marriage.” Power play can also strain relationships. Wives demand equality in opportunities with the husbands in decisionmaking and for growth outside the home front. Husbands who do not feel secure with themselves may resent liberating their wives so. There are husbands who exercise an upper hand in the financial decision-making over the income of the wives, claiming it to be the duty and /or privilege of the head of the family. They assume headship under all conditions. Headship 25
Easing the Pains of Battle
by the husband is provided for in the Family Code–in a minimized degree–and in the Book of Life. Some wives resent absolute headship. Hence, the ensuing conflict. Gary J. Friedman, J.D. considers mediation as a chance to stop doing battle. It helps people work together by helping them sort through the issues, and giving the parties access to the law, without the mediator becoming a proponent of a position or an advocate of either party.3 Contrary to common notion, peaceful settlement can also be financially rewarding. Income can be realized in a shorter time and with a lot more ease and less worry. Parties in conflict situations are willing to pay attorney’s fees in a court litigation that comes with concomitant stresses, anxieties, even seething anger and uncertainties. Once properly enlightened as to the virtues of mediation, they will even be more grateful for an alternative dispute resolution process. This is good news to lawyers who need to earn a living out of an honest practice of the legal profession–parties to mediation also gladly pay a reasonable fee for it. The impression that parties whose cases are settled peacefully are reluctant to pay lawyers is not accurate. It arises from the perception that lawyers are supposed to be bloody gladiators who have to chop their opponent into pieces, to earn their keep. Lawyers only need to educate potential litigants on the virtue of amicable settlement. In so doing, lawyers who do not like to sue can also earn their fees on top building and/or recapturing peace. My first serious attempt at mediating spouses may defy ordinary understanding. Lala, the wife, came back to life to be 3. A Guide to Divorce Mediation (New York: Workman Publishing Company,1993), pp 2-3
26
Section I: A Canvass For Peace
able to forgive her erring husband. This is indeed a “believe-itor-not” scenario. Medical science can explain it away though. My husband, a friend, and a sister-in-law, together with the immediate family of Lala and most importantly, her husband, have witnessed the bitter-sweet culmination of her life. The mediation process did not end with Lala’s death. A number of us witnessed the hair-raising scene. With our eyes, we saw the wife’s death-defying desire to forgive her hardened husband. The presence of other people, and their confirmation assured me I was not imagining things nor needing a new pair of eyeglasses. Lala and Rad had been married for 30 years. Half of their marital journey was turbulent due to infidelity on the part of Rad. The evidence was solid. A detective was able to track down where Rad kept his second family. Lala refused to make anything out of this evidence. She simply pleaded for Rad to reform. The husband ceremoniously denied his unfaithfulness, up to the wife’s death bed. The first few years of a happy married life gave Lala enough good memory. That made her cling to an enduring faith that one day Rad would be his old, loving self again. As Lala’s lawyer, I educated her on her rights and her legal remedies as an aggrieved wife. As a mediator, I pulled Lala and Rad towards each other for a second chance at a loving relationship. Rad refused to come any bit closer. Lala waited and waited. Lala knew her rights by heart but her heart clang stubbornly to her hope for a second heaven, with the same man. She wanted to avail of mediation, hoping that it could pave the way for deeper understanding, forgiveness and healing. Her wishes appeared remote from happening. Ever. Rad did not show any inclination to go through mediation. He exhibited only callousness during the only time we had an abbreviated dialogue. He vehemently denied his infidelity before his wife. Alone with me, he admitted to having another 27
Easing the Pains of Battle
family and blamed Lala for it. He refused to admit any wrongdoing and conveniently made his wife a scapegoat for his infidelity. His infidelity was not admitted as his own weakness but a consequence of a perceived or imagined defect on the part of his wife. The double standard of morality on the norms of male and female behavior was an ingrained component of Rad’s persona. He saw nothing wrong in having a wife for his convenience and another woman for his pleasure Lala also refused to admit that she must have contributed to the failure of their relationship. She demanded an apology and contrition on the part of Rad but was not ready to accept any mistake on her part. As far as she was concerned, she had been a very good wife. Though she was willing to admit certain limitations, she was not ready to apologize for them. All faults belonged to Rad. “He pushes me to nag him,” Lala asserted. Lala had been sickly and she used to tell me jokingly that she would not die without clearing up matters with Rad. “My only wish is to be able to tell him I still love him despite his unfaithfulness. I am ready to forgive him.” She would repeat those lines like a litany every time we would talk. I saw in her, a nature that can forgive easily. Ironically, hers was a husband whose vocabulary did not include the word “sorry”. The problem lay in a man’s heart toughened by decades of living a life of lies. Rad refused to admit any wrongdoing. All that Lala asked was a small degree of dignity that apology could bring. But Rad remained an immovable rock; a fortress of pride that love, or whatever was left of it, could no longer pierce. She appeared at the verge of death that night when I rushed to her side. Rad remained far away, but near enough to hear my prayers. I kept repeating: “Lord, as You forgive Lala of all her misgivings, let her forgive us too of our misdeeds against her. Lala, we love you, forgive me, your children (mentions name) and Rad, for anything we may have done or not done that 28
Section I: A Canvass For Peace
caused you pain.” That prayer was a last attempt at mediation between Lala and Rad. After a few hours, Lala dropped her head, closed her eyes tight and lost every pulse in her veins. All of us in the room accepted that Lala had left, never to return to the mediation table or anywhere else within our grasp.Then and only then, upon hearing the announcement of Lala’s death, that Rad rushed near her, knelt by her head, bowed down close to her ears, and with tears flowing, uttered what I imagined, were words of love and apology. Too late? That unnerving scene took about fifteen to twenty minutes. It froze everything and everyone in the room. Rad’s tears must have rolled fast; they traversed beyond Lala’s death bed, and caught up with her on her journey into the afterlife. Lala slowly opened her eyes. She lifted her hand. It was no longer a limp and sickly arm. It was a hand revitalized by eternal love and forgiveness beyond the grave. She touched Rad’s cheek; flashed a most enticing smile on a lot more youthful, loving face. Before leaving with finality to be home, where there is no unfaithfulness and suffering; Lala came back to life to forgive an erring husband. This one was the handiwork of the Divine Mediator. The realization that I took part in that mission electrified my soul. ( Jessie Malvar, CEFAM Counselor commented that the youthful face is a sign of healing because forgiving heals.) My mediation advocacy has grown stronger. Mediation, to my surprise, not only loosens the yoke of conflict and gives relief to a weary spirit; it can also revive the heart that starts to tire. It can even bring back the dead to life! One noteworthy case did not involve family members in its natural sense but members of a condominium corporation; nevertheless, they were considered members of a family by legal fiction. It is worthy of note because it failed in the end 29
Easing the Pains of Battle
and can give some precious insights worth knowing. The conflict involved an owner and developer of a residential/ office condominium project on one side, and the buyer of the whole ground floor on the other. The unit buyer refused to pay his final payment of Three Million Philippine Pesos after his resurvey showed that the area of the unit was less than the area appearing in the contract. The disgruntled party filed his complaint at the Housing and Land Use Regulatory Board (HLURB). When asked to defend the corporation I suggested an amicable settlement. From being an advocate, I assumed the role of a mediator with the consent of the unit buyer and with the permission of his lawyer. A few days after the signing of the Memorandum of Agreement, the unit buyer received the notice from the HLURB requiring him to submit certain documents in support of his complaint against the owner/developer. The buyer handed it to me for safekeeping. I am still keeping the notice as some kind of a trophy. Unfortunately, the buyer was finally constrained to go to court in the end. The seller refused to comply with some essential terms of their compromise agreement. Mediation works if the parties themselves want to shun adversarial litigations. Some parties go to court thinking that litigation is the only way they can protect their rights or secure their due. Given the choice and the opportunity, peaceful settlement is the preference of almost every normal human being. For mediation to be successful, transparency and good faith must be its built-in components. In the condominium family case, bad faith may have crept in, hence; the lack of balance. Balance of power is another requirement for a successful mediation process. Bad faith can trip the unsuspecting party who comes to the mediation table in good faith. 30