CHAPTER 3
Pleadings, motions manifestations, witness statements,
MEDIATION UNDER THE ACT OF 2004
Mediation in General
(Sections 7 and 8, ADR Act of 2004)
 A voluntary process in which a mediator, selected by the
disputing parties, facilitates the communication and
negotiation, and assists the parties in reaching a voluntary
agreement regarding a dispute.
Excluded from the coverage of ADR Act are:
 Court-annexed mediation – mediation process conducted
under the auspices of the court.
 Court-referred mediation –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.
 Conciliation conducted by the lupongtagapamayapa and
pangkatngtagapagkasundo under Chapter 7, Book III of
R.A. No. 7160
 Judicial Dispute Resolution (JDR) – the mediation,
conciliation and early neutral evaluation process
conducted by the judge of pending case after a failed
court-annexed mediation and before pre-trial stage.
Mediator – the person who conducts the mediation.
Mediation parties – the parties thereto.
Non-party participants – all other parties who take part in the
process who can either be witnesses, resource persons or
experts.
Classification of Mediation
As to form of ADR
 Non-evidentiary; or
 Non-merit based
As to the structure of ADR
 Institutional – when administered and conducted under
the rules of mediation institution;
 Ad hoc - other than institutional.
Place of Mediation
 The parties are given the freedom to agree on the place of
mediation.
 In the absence of such agreement, the place shall be any
place convenient and appropriate to all parties. This is the
default venue of mediation.
Stages in Mediation
a) Opening statement of the mediator;
b) Individual narration by the parties;
c) Exchange by the parties;
d) Summary of issues;
e) Generalization and evaluation of options; and
f) Closure.
 Not obligatory and the parties may choose the procedure
that will govern their mediation.
 Shall be held in private unless the parties consent to the
presence of persons other than themselves,
representatives and mediator.
 Shall be closed and concluded:
a) By the execution of settlement agreement by the
parties;
b) By the withdrawal of any party from the
mediation; or
c) By the written declaration of the mediator that
any further effort at mediation would not be
helpful.
Advantages of Mediation
a) Confidentiality in the mediation process;
b) Prompt, economical and amicable resolution of disputes;
and
c) The decision-making authority rests in the parties. (Sec. 8
of the ADR Act of 2004)
What is included in the phrase “confidential information?”
It shall include:
1. communication, oral or written, made in a dispute
resolution proceeding, including any memoranda, notes or
work product of the neutral party or nonparty participant;
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
BRANDEZ DACANAY DAYANGHIRANG CALUSA DULATAS | GROUP 3
3.
reports filed or submitted in arbitration or for expert
evaluation.
Information obtained through mediation proceedings shall be
subject to the following principles and guidelines:
a. Information obtained through mediation shall be
privileged and confidential.
b. A party, a mediator, or a non-party participant may refuse
to disclose and may prevent any other person from
disclosing a mediation communication.
May the modes of discovery under the rules of court be availed of
to obtain information disclosed in mediation proceedings?
 Confidential Information shall not be subject to discovery
and shall be inadmissible if 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 mediation.
Who are the parties covered by the confidentiality rule?
 In such an adversarial proceeding, the following persons
involved or previously involved in a
1. the parties to the dispute;
2. the mediator or mediators;
3. the counsel for the parties;
4. the non-party participants;
5. any persons hired or engaged in connection with the
mediation as secretary, stenographer, clerk or assistant;
and
6. any other person who obtains or possesses confidential
information by reason of his/her profession.
A. The privilege does not attach to or exist in the following
communication:
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;
5. sought or offered to prove or disprove abuse, neglect,
abandonment, or exploitation in a proceeding in
which a public agency is protecting the interest of an
individual protected by law;
XPN to the XPN: This exception does not apply where
a child protection matter is referred to mediation by a
court or a public agency participates in the child
protection mediation;
6. sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice
filed against mediator in a proceeding; or
7. sought or offered to prove or disprove a claim of
complaint of professional misconduct of malpractice
filed against a party, non-party participant, or
representative of a party based on conduct occurring
during a mediation.
B. There is no privilege if a court or administrative agency,
finds, after a hearing in camera, that the party seeking
discovery of the proponent of the evidence has shown that
the evidence is not otherwise available, that there is need
for the evidence that substantially outweighs the interest
in protecting confidentiality, and the mediation
communication is sought or offered in:
1. a court proceeding involving a crime or felony;
or
2. a proceeding to prove a claim or defense that
under the law is sufficient to reform or avoid a
liability on a contract arising out of the
mediation.
NOTE: A mediator may not be compelled to provide evidence
of a mediation communication or testify in such proceeding.
Can the mediator voluntarily testify?
No, because such situation will violate the rules on confidentiality
Can this privilege arising from the confidentiality of information in
mediation proceedings be waived?
Yes. A privilege arising from the confidentiality of information may
be waived in a record, or orally during proceeding by the mediator
and the mediation parties. Privilege arising from the confidentiality
of information may likewise be waived by a non-party participant if
the information is provided by such non-party participant.
The Mediator
2. Encourage and assist the client to actively participate in positive
discussions and cooperate in crafting an agreement to resolve their
dispute.
3. Assist the client to comprehend and appreciate the mediation
process and its benefits, as well as the client’s greater responsibility
for the success of mediation in resolving dispute.
4. Confer and discuss with the client the mediation process and
substance.

The mediation parties are given the freedom to select their mediator
and they may request the Office for Alternative Dispute Resolution
(OADR) to provide them with a list or roster of its certified
mediators, and their resumes.

A mediator who refuses to act as such may withdraw or may be

compelled to withdraw from the mediation proceedings under any
of the following circumstances:

1. If any of the parties requests the mediator to withdraw

2. The mediator does not have the qualifications, training and

experience to enable him to meet the reasonable expectations of
the parties.

3. The mediator’s impartiality is in question.

4. The continuation of the process will violate an ethical standard.

5. The safety of one of the parties will be jeopardized.

6. The mediator is unable to provide effective services.

7. In case of conflict of interest.

8. Other instances provided for under the IRR.

Duties and Functions of Mediators

1. Prior to mediation

a. On Competence. A mediator should maintain and continually

upgrade his professional competence in mediation skills.

b. On impartiality. The mediator should make an inquiry that is

reasonable to determine whether there are known facts that a
reasonable individual would consider likely to affect his impartiality;
and disclose such fact known as soon as practicable.

2. During the mediation

a. Confidentiality

b. On consent and self-determination. A mediator shall exert

reasonable efforts to ensure that each party understands the nature
and character of the mediation proceedings.

c. On promotion of respect and control of abuse of process. The

mediator shall encourage mutual respect between the parties.

Mediator’s Costs and Fees

A mediator is allowed to charge costs, reasonable fees and charges

against the parties but he is under obligation to fully disclose and
explain the basis.

In an ad hoc mediation, the parties are free to make their own

arrangements as to mediation costs and fees.

In an institutional mediation, mediation costs shall include the

administrative charges, mediator’s fees and associated expenses.

Mediated Settlement Agreements

The concluding document in a successful mediation is called the

mediated settlement agreement. It may also take the form of a
compromise agreement.

Role of Counsel in Mediation

The lawyer or counsel so designated shall have the following roles:

1. Collaborate with the other lawyer in working together towards

the common goal of helping their clients resolve their differences to
their mutual advantage.
BRANDEZ DACANAY DAYANGHIRANG CALUSA DULATAS | GROUP 3