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The Rules On Mediation: Legal Basis
The Rules On Mediation: Legal Basis
The Rules On Mediation: Legal Basis
Legal basis: I. DTI DAO NO. 5, SERIES OF 2007 II. RA No. 9285, otherwise known as the Alternative Dispute Resolution (ADR) Act of 2004 III.Executive Order No. 526, s. 2006
Definition:
MEDIATION an alternative mode of dispute resolution under which the Mediation Officer facilitates the communication and negotiation between the parties, and assists them in reaching a voluntary agreement. the decision-making authority rests with the parties the Mediation Officer does not have the power to compel the parties to a recommended solution mandatory may still be availed at any stage of the adjudication proceedings confidential in nature
dispute resolution involving a mutually acceptable neutral third party (arbitrator) empowered to make a decision on the merits after an informal hearing that usually includes presentation of evidence and oral argument. Arbitral decisions are generally binding and subject to limited judicial review.
continuation
Arbitration may be voluntary (by private agreement) or compulsory (by legislation or through a public courtannexed program).
Instead of a single arbitrator, a panel (generally a tripartite board) may be used. Arbitration is widely used for labor relations and commercial disputes.
Conciliation is a process in which a neutral third party (conciliator) conveys information between parties and attempts to improve direct communication between them.
a report that describes the scope of agreement and disagreement is prepared by the Conciliator the role of a conciliator is more passive than a mediator most often used in collective bargaining disputes.
Scope: (Trade & Industry Laws Including the Consumer Act of the Philippines) walk-in or phoned-in verbal inquiries walk-in or phoned-in verbal complaints written complaints sent via ordinary mail complaint sent via electronic means
Rationale of the Exclusion The main objective of mediation is to resolve a dispute between two private parties. In a Formal Charge, the other party is the government. In a Formal Charge, DTI is not just representing an individual but the interest of the public. Thus, entering into a compromise with the person who violated public rights is contrary to public policy. Further, it defeats the objective of the law being implemented.
Pre-Adjudication Mediation
Sec. 4, Rule II -The pre-adjudication mediation shall be set not later than five (5) days from receipt of complaint the notice should be personally served on the parties immediately upon receipt of the complaint the conduct thereof is mandatory prior to the application of the procedures under DAO 7, s.2006 confidential in nature
Mediation During Adjudication The Notice of Mediation shall be issued within five (5) days from the filing of the answer, or from the lapse of the period to answer if none has been filed and shall be served on the parties at least five (5) days before the scheduled mediation. (Sec. 2, Rule X, DAO7) Should mediation fail, the Adjudication Officer shall conduct a preliminary conference (Sec. 1, Rule XI DAO 7)
STEP 2: Complainant gives account of the circumstances which lead to the filing of the complaint.
Ask Complainant to describe the circumstances leading to the filing of the complaint. Listen. Ask questions only if necessary, try to reserve questions until the end. Keep things flowing. At this stage, do not ask what complainant wants.
STEP 3: Respondent gives its account of the circumstances and discusses the reason for its action(s). Ask respondent to narrate the circumstances. Listen. Ask questions only if necessary, try to reserve questions until the end. Keep things flowing.
STEP 5: Hold private, confidential session with Complainant. (most important step) Build Trust. Ask complainant if he/she has any thing else to add. Summarize your understanding of what has been said so far. Assess case, review what it takes to make a prima facie case.
Ask what complainant wants.
Throughout the negotiation process, the M.O. should keep in mind that the objective is to explore options for settlement. Encourage the parties to resolve the problem between themselves. Assess the productivity of the process; continue or end negotiations.
STEP 8 (a) : Go over the terms of the negotiated settlement agreement with the parties.
Clarify from the parties the exact terms and conditions of the agreement. Direct the parties to reduce it in writing and sign and submit a notarized copy of the same. Thank the parties for participating and conclude the mediation. Issue an Order approving the Agreement.
Thank the parties for participating and conclude the mediation. Issue a Certification, attesting that Rule III of DAO 5, s. 2007 has been complied with. Submit the case for arbitration/adjudication.
Compromise Agreement
immediately executory
the Mediation Officer does not the arbitrator(s) determine the have the power to compel the outcome of the case. parties to a recommended solution
END
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