Chapter 3 Mediation under ADR Act of 2004

MEDIATION, Defined
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.

EXCLUDED from ADR Coverage are:

1. Court-annexed mediation (CAM)
- Mediation process conducted under the auspices of the court;
- Conducted prior to the pre-trial where the judge refers the parties to the Philippine
Mediation Center/PMC for the mediation of their dispute by trained and accredited
mediators

2. Court-referred mediation (CRM)

- Mediation ordered by a court to be conducted in accordance with the agreement of the
parties when an action is prematurely commenced in violation of such agreement.

3. Conciliation at Barangay level, conducted by Lupong tagapamayapa and pangkat

ng tagapagkasundo, under the LGC of 1991

4. Judicial Dispute Resolution (JDR)

- Mediation, conciliation and early neutral evaluation process conducted by a judge of
a pending case after a failed court-annexed mediation and before the pre-trial stage.

Note: CAM, CRM and JDR are methods of ADR, but not governed by ADR Act of 2004.

PARTIES IN MEDIATION PROCESS:

1. Mediator;
2. Mediation parties;
3. Non-party participants e.g. witnesses, experts, resource persons.

CLASSIFICATION OF MEDIATION:
As a form of ADR: Non-evidentiary
Evidentiary

As to the structure of ADR provider: Ad Hoc

Institutional

PLACE OF MEDIATION:
General Rule: Mediation parties are given the freedom to agree on the place of
mediation.
Default Rule: In the absence of such agreement, the place of mediation shall be any
place convenient and appropriate to all parties.
STAGES IN MEDIATION:
General Rule: Under the principles of self-determination and party autonomy, mediation
parties may choose the procedure that will govern their mediation.

Default Procedure is as follows: O-I-E-S-G-C

1. Opening of statement of the mediator;
2. Individual narration by the parties;
3. Exchange by the parties;
4. Summary of issues;
5. Generalization and evaluation of options; and
6. Closure.

Note: Mediation process shall be in private UNLESS the parties thereto consent to the presence
of persons other than themselves, their representatives or the mediator.

3 Ways of Closure: E-W-W

1. By the Execution of a settlement agreement by the parties;
2. By the Withdrawal of any party from mediation; or
3. By the Written declaration of the mediator that any further effort would not be helpful.

ADVANTAGES OF MEDIATION: C-P-D

1. Confidentiality;
2. Prompt, economical and amicable resolution of dispute; and
3. Decision-making authority rests in the parties.

CONFIDENTIAL AND PRIVILEGED NATURE OF MEDIATION COMMUNICATION:

- All information obtained through mediation proceedings are privileged and
confidential in character.
- Rooted on fair play and equity.

Privilege
Is a rule that, to protect a particular relationship or interest, either permit a witness
to refrain from giving testimony he otherwise could be expected to give, or
permits someone, usually one of the parties, to prevent the witnesses from
revealing certain information.

Confidential information
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.

Expressly confidential if the intention not to be disclosed is expressed by its

source;
Impliedly confidential if obtained under circumstances that would create a
reasonable expectation on behalf of the source that the information shall not be
disclosed.

Confidential information includes, but not limited to:

1. Oral or written communication made in a dispute resolution proceeding;
2. Oral or written statement made or which occurs during the mediation or
for purposes of considering, conducting, participating, initiating,
continuing or reconvening mediation;
3. Pleadings, motions, manifestations, written statements and reports filed or
submitted in arbitration or for expert evaluation.

Legal Effects of Confidential and Privileged Nature:

1. Parties may refuse to disclose and may prevent any other person from
disclosure of confidential information;
2. Confidential information shall not be subject to discovery and
inadmissible in adversarial proceedings;
3. All of the parties in the mediation are bound by the prohibition to disclose
confidential information;
4. Prohibition/Protection under the ADR Act shall continue even if mediator
failed to act impartially.
5. Mediator may not be called to testify based on the mediation proceedings

Instances/Exceptions to Confidential/Privileged Information Prohibition:

CAT-4C
1. Those contained in an agreement;
2. Those available to the public or made during an open mediation or when
required by law to be open to the public;
3. A threat;
4. Communication intentionally to plan, attempt to commit or commit a
crime or conceal an ongoing crime;
5. Communication sought or offered to prove or disprove abuse, neglect,
abandonment or exploitation;
6. Communication sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against the
mediator;
7. Communication sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against a party,
non-party participants or representatives.

EXCEPTIONS BASED ON PUBLIC POLICY

WAIVER OF CONFIDENTIALITY
Express When it is contained in a record or
made orally during a proceeding by the
mediator and the mediation parties
 Implied 1. By failing timely object to an
objectionable question; or
2. By testifying or presenting a
witness to testify on confidential
and privileged information

Estoppel When a non-party participant himself

discloses the erstwhile confidential
information.

Note: objection must be made at the earliest opportunity, otherwise it will be

deemed waived.

WITHDRAWAL OF MEDIATOR
- Voluntary withdrawal
- Compulsory withdrawal
- Circumstances: R-L-I-C-S-I-C-O
1. Any of the parties requests the mediator to withdraw;
2. Mediators lack of qualification, training and experience;
3. Mediators impartiality is questioned;
4. Continuation of the process will violate an ethical standard;
5. Safety of one of the parties will be jeopardized;
6. Mediators ineffective services;
7. Conflict of interest; or
8. Other instances.

DUTIES AND FUNCTIONS OF MEDIATOR:

A. PRIOR TO MEDIATION
1. Competence A mediator should maintain and continually upgrade his
professional competence in mediation skills.

2. Impartiality Before accepting, the mediator should make an inquiry that is

reasonable under the circumstances to determine whether there are known facts
that would likely to affect his impartiality.

B. DURING MEDIATION
1. Confidentiality required
2. Consent and self-determination a mediator shall exert reasonable efforts to
ensure that each party understands the nature and character of the process and that
each party is free and able to make whatever choices he desires regarding his
participation.

C. ON PROMOTION OF RESPECT AND CONTROL OF ABUSE OF PROCESS

MEDIATED SETTLEMENT AGREEMENT
- The concluding document in a successful mediation
- Also a compromise agreement
- Has the force and effect of Res Judicata binding upon the parties; however, it needs
judicial approval (not contrary to lamogpop)
- Once judicially approved, may be enforced thru a writ of execution.
- Applicable principles:
1. Prepared by the parties, assisted by their counsels if any, and the mediator;
2. Signed by the parties and their respective counsels, if any, and certified by the
mediator;
3. To be deposited, jointly by the parties or by one party with prior notice to the
other party/ies, with the RTC Clerk of court: a. where the principal place of
business in the Phils of any party is located; b. where any of the party resides;
or c. in the National Capital Judicial Region.
4. A petition may be filed to enforce settlement agreement thru summary
proceedings, in accordance to Special ADR Rules;
5. Parties may agree that the mediator shall be the sole arbitrator.

ROLE OF COUNSEL IN MEDIATION

1. Collaborate with the other lawyer;
2. Encourage and assist the client to actively participate and cooperate;
3. Assist the client to comprehend
4. Confer and discuss with the client the mediation process and substance.