Professional Documents
Culture Documents
Alternative Dispute Resolution: Adlawan, Quimosing, Romero, Santos
Alternative Dispute Resolution: Adlawan, Quimosing, Romero, Santos
A D L AWA N , Q U I M O S I N G ,
R O M E R O, S A N T O S
A LT E R N AT I V E D I S P U T E
R E S O LU T I O N S Y S T E M
Refers to any process or procedure used to resolve
a dispute or controversy, other than by
adjudication of a presiding judge of a court or an
officer of a government agency, as defined in this
Act, in which a neutral third party participates to
assist in the resolution of the issues, which
includes arbitration, mediation, conciliation, early
neutral evaluation, mini-trial, or any combination
thereof.
(Sec. 3[a] RA 9285)
L E G A L B A S I S O F A LT E R N AT I V E
DI S PU TE R E S O LUT IO N
19 July 1953
FORMS OF A.D.R.
1.
ARBITRATION
2.
MEDIATION
3.
CONCILIATION
4.
5.
MINI-TRIAL
6.
7.
M E D I AT I O N
General meaning:
CHAPTER 2 OF RA 9285
V O L U N TA RY
M E D I AT I O N
M E D I AT I O N
A voluntary process in which a mediator, selected
by the disputing parties, facilitates communication
and negotiation, and assists the parties in
reaching a voluntary agreement regarding a
dispute.
(Sec. 3[q] , RA 9285)
C L A S S I F I C AT I O N
1.
INSTITUTIONAL
C H A R A C T E R I S T I C S O F M E D I AT I O N :
1. Place of Mediation may be the subject of agreement.
2. Assistance of lawyers or non-parties is allowed but may
also be waived in writing but such waiver may be
rescinded at any time.
3. Agreement by parties to institutional mediation
necessarily includes an agreement that the parties, the
mediator, their lawyers or nonparty participant are bound
by the internal rules and administrative policies of the
mediation institution. Should there be a conflict between
the institutions rules and RA 9285, the latter shall prevail.
1. Economic Benefits
Years of experience prove that mediation can drastically bring
litigation expenses down.
2. Rapid Settlements
A case is filed in court can take approximately one year to get a trial
date. Assuming the case gets settled in 3 years, the other party can
file for appeal that typically takes another 3-5 years to resolve. Sum
the time, the cost and the stress, and the cost is the most
unproductive time of ones life. While conflict is unresolved, litigants
are in for a rollercoaster of emotional, mental, relational, and
financial burdens.
3. Mutually Satisfactory Outcomes & Preservation of Relationships
Parties are generally more satisfied with solutions that they
themselves crafted and mutually agreed upon, as opposed to
solutions that are imposed by a third party decision-maker.
A P P L I C AT I O N A N D I N T E R P R E TAT I O N
Consideration must be given to:
(Sec. 8 RA 9285)
CASES COVERED
1. All civil cases, settlement of estates and cases covered by the
Rule on Summary Procedure. Typical cases would be collection
of debts, ejectment of tenants in apartment dwellings, and
inheritance disputes among family members.
2.
3. The civil aspect of Batas Pambansa 22, which covers the debts
paid through bouncing checks.
4. The civil aspect of quasi-offenses under negligence like motor
vehicle accidents that has damaged the vehicle or injured
passengers or pedestrians.
1.
2.
3.
4.
5.
6.
Future legitime;
7.
Criminal liability;
8.
9.
W H AT I S C O N F I D E N T I A L
I N F O R M AT I O N ?
Any information, relative to the subject of mediation or arbitration,
expressly intended by the source not to be disclosed, or obtained
under circumstances that would create a reasonable expectation
on behalf of the source that the information shall not be disclosed.
(1) Communication, oral or written, made in a dispute resolution
proceedings, including any memoranda, notes or work product of
the neutral party or non-party participant, as defined in RA 9285;
(2) An oral or written statement made or which occurs during
mediation or for purposes of considering, conducting, participating,
initiating, continuing of reconvening mediation or retaining a
mediator; and
(3) Pleadings, motions manifestations, witness statements,
reports filed or submitted in an arbitration or for expert evaluation.
C O N F I D E N T I A L I T Y O F I N F O R M AT I O N
(PRINCIPLES AND GUIDELINES)
(a) Information obtained through mediation shall be
privileged and confidential.
(b) A party, a mediator, or a nonparty participant may refuse
to disclose and may prevent any other person from
disclosing a mediation communication.
(c) Confidential Information shall not be subject to discovery
and shall be inadmissible in any adversarial proceeding,
whether judicial or quasi-judicial. However, evidence or
information that is otherwise admissible or subject to
discovery does not become inadmissible or protected from
discovery solely by reason of its use in a mediation.
WA I V E R O F C O N F I D E N T I A L I T Y
(Sec. 10 RA 9285)
E XC E P T I O N S T O P R I V I L E G E
(a) If mediation communication is:
(1) in an agreement evidenced by a record
authenticated by all parties to the agreement;
(2) available to the public or that is made during a
session of a mediation which is open, or is required by law
to be open, to the public;
(3) a threat or statement of a plan to inflict bodily injury
or commit a crime of violence;
(4) internationally used to plan a crime, attempt to
commit, or commit a crime, or conceal an ongoing crime
or criminal activity;
P R O H I B I T E D M E D I AT O R
R E P O RT S
A mediator may not make a report, assessment, evaluation,
recommendation, finding, or other communication regarding
a mediation to a court or agency or other authority that
make a ruling on a dispute that is the subject of a mediation,
except:
(a) Where the mediation occurred or has terminated, or
where a settlement was reached.
(b) As permitted to be disclosed under Section 13.
(Sec. 12, RA 9285)
H O W C A N T H E PA RT I E S B E S U R E T H AT T H E M E D I AT O R
I S N O T B I A S E D T O WA R D S O N E PA RT Y A N D T H AT
THERE IS NO CONFLICT OF INTEREST?
H O W C A N A M E D I AT E D S E T T L E M E N T
B E E N F O RC E D ?
Sec. 17 provides the following operative principles:
(a) A settlement agreement following successful mediation shall be
prepared by the parties with the assistance of their respective
counsel, if any, and by the mediator.
The parties and their respective counsels shall endeavor to make
the terms and condition thereof complete and make adequate
provisions for the contingency of breach to avoid conflicting
interpretations of the agreement.
(b) The parties and their respective counsels, if any, shall sign the
settlement agreement. The mediator shall certify that he/she
explained the contents of the settlement agreement to the parties
in a language known to them.
M E D I AT O R
W H AT D O E S A M E D I AT O R D O ?
During mediation proceedings, the mediator will have to:
1.
2.
3.
4.
5.
6.
Q U A L I F I C AT I O N S O F A M E D I AT O R
1.
2.
3.
4.
5.
S E L E C T I O N O F A M E D I AT O R
PROCESS
( M E D I AT I O N U N D E R A D R A C T )
STEP 2: NOTICE OF
M E D I AT I O N
The Secretariat shall send a Notice of Mediation to
both the complainant and respondent indicating
the schedule of the preliminary
conference.Should the parties wish to send a
representative; a notarizedSpecial Power of
Attorneywill be required.Please refer to
Mediation Forms for details of the Special Power of
Attorney.
S T E P 3 : AT T E N D T H E
P R E L I M I N A RY C O N F E R E N C E
The preliminary conference will be an opportunity for both
parties to understand the process and guidelines for
mediation.
The NCM shall raffle off the case to a mediator from its
roster.This step will require parties to agree on the
mediator who will handle the case.Should, for any reason,
the mediator is unable to handle the case, the parties shall
each pick three (3) names from the roster of available
mediators.The common name will be chosen.If no common
name appears, the NCM shall recommend a mediator to be
agreed upon by all parties.
S T E P 5 : M E D I AT I O N
S E SS I O N S
Each mediation session lasts three (3) hours.Should it run beyond three (3) hours, it
shall be counted as another mediation session.
The mediator begins with his opening statement which will include:
1.
2.
3.
discuss the rules of the mediation sessions and get the parties' commitment to
abide by these rules
4.
Parties are each given uninterrupted time to express their statements.There will be a
series of exchanges between the parties and / or private caucuses with each of the
party.
All information gathered during the mediation sessions shall be kept confidential and
may not be used outside the mediation process.
S T E P 6 : E N D O F T H E M E D I AT I O N
P R O C E SS
A mediation case may end with any of the following:
1 Successful Mediation:Parties sign anAgreement
where details of settlement are enumerated.
2 Failure of mediation:Parties decide to end the
mediation sessions without an agreement.The parties may
opt to bring the case to other processes such as conciliation,
arbitration or litigation.
Parties are asked to fill out aMediator's Evaluation Form
despite the outcome of the case.
M E D I AT I O N F E E S
ACCORDING TO NCM
M E D I AT I O N C E N T E R
IN THE PHILIPPINES
ADDRESS:
3 R D F L O O R , C O M M E R C E A N D I N D U S T RY P L A Z A B L D G . ,
1 0 3 0 C A M P U S AV E N U E C O R N E R PA R K AV E N U E ,
M C K I N L E Y T O W N C E N T E R , F O RT B O N I FA C I O ,
TA G U I G C I T Y , M E T R O M A N I L A
K I N D S O F M E D I AT I O N N O T
UNDER RA 9285:
1.
Court-annexed mediation
2.
Court-referred mediation
C O U RT- A N N E X E D M E D I AT I O N
C O U RT- R E F E R R E D
M E D I AT I O N
A mediation ordered by a court to be conducted in
accordance with an agreement of the parties
when an action is prematurely commenced in
violation of such agreement.
PROCESS
( C O U RT- A N N E X E D M E D I AT I O N )
S T E P 1 : O R D E R O F M E D I AT I O N
STEP 2:SELECTION OF
M E D I AT O R
The Supervisor of the PMC unit will assist the parties to
select a mutually acceptable mediator from the list of
available mediators. The mediator will be considered an
officer of the court. Lawyers may attend the mediation
proceedings, but they must cooperate with the mediator to
reach an amicable settlement of the case.
STEP 3: CONFERENCE
STEP 4: SUBMISSION OF
R E P O RT
The mediator will submit to the trial court status report on
the progress of the proceedings at the end of the mediation
period. The mediator is mandated not to record the
proceedings in any manner, but he may take down personal
notes to guide him. The PMC will not keep a file of mediation
proceedings except the report of the mediator. This is
because court-annexed mediation proceedings like those
voluntary mediation proceedings under the ADR Law are
confidential.
S T E P 5 : O U TC O M E O F
M E D I AT I O N
When the mediation results in realization of all claims of the
plaintiff, a motion to dismiss may be filed in court. If there
are obligations still to be complied with, the parties may
execute a compromise agreement which will then be
submitted to the court for approval. If the court finds the
compromise agreement to be in order, judgment will be
rendered in accordance therewith. If mediation fails, the
case will be returned to the court of origin per a Certificate
of Failed Mediation issued by the mediator.
M E D I AT I O N F E E S
The mediation fee shall be a certain percentage
AMOUNT
CHARGEABLE
MINIMUM FEE
MAXIMUM
FEE
P1, 000
P10, 000
P2, 000
P30, 000
P3, 000
P50, 000
M E D I AT I O N C E N T E R
IN THE PHILIPPINES
A D D R E S S : 3 / F G U S A L I N G K ATA R U N G A N , F. Z O B E L , C O R .
J . P. R I Z A L S T. 1 2 0 0 , P H I L I P P I N E S
W H AT A R E T H E
C L A S S I F I C AT I O N S O F
M E D I AT I O N U N D E R A . D . R .
ACT?
DISTINGUISH.
1.
INSTITUTIONAL
NAME 2 FORMS OF
ADR
1.
ARBITRATION
2.
MEDIATION
3.
CONCILIATION
4.
5.
MINI-TRIAL
6.
7.
W H AT D I D J U D G E PA R A S
SING DURING THE ONE
LY C E U M N I G H T PA R T Y
( A C Q U A I N TA N C E PA R T Y ) ?
PUSONG BATO
G I V E AT L E A S T T W O ( 2 )
Q U A L I F I C AT I O N S O F A
M E D I AT O R
1.
2.
3.
4.
5.
NAME 2 CASES
C OV E R E D BY
M E D I AT I O N ?
1. All civil cases, settlement of estates and cases covered
by the Rule on Summary Procedure. Typical cases would
be collection of debts, ejectment of tenants in apartment
dwellings, and inheritance disputes among family
members.
2. Cases cognizable by the Lupong Tagapamayapa under
the Katarungang Pambarangay Law such as disputes
between neighbors of the same barangay over property.
3. The civil aspect of Batas Pambansa 22, which covers the
debts paid through bouncing checks.
4. The civil aspect of quasi-offenses under negligence like
motor vehicle accidents that has damaged the vehicle or
injured passengers or pedestrians.