November 24, 2017 | Author: Nhardz Briones | Category: Mediation, Alternative Dispute Resolution, Settlement (Litigation), Arbitration, Virtue
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Alternative Dispute Resolution System – means 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 issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. (Sec. 3(a), RA 9285) FORMS OF ADR a. Mediation – means a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute. (Sec. 3(q), RA 9285) i. Court-Annexed Mediation – means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute. (Sec. 3(l), RA 9285) ii. Court-Referred Mediation – means mediation ordered by a court to be conducted in accordance with the Agreement of the Parties when as action is prematurely commenced in violation of such agreement. (Sec. 3(m), RA 9285) iii. Judicial Dispute Resolution – mediation, conciliation and early neutral evaluation process conducted by the judge of a pending case after a failed court-annexed mediation and before the pre-trial.1 b. Arbitration – means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award. (Sec. 3(d), RA 9285) c. Early Neutral Evaluation – means an ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute. (Sec. 3(d), RA 9285) d. Mini-Trial – means a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement. e. Mediation-Arbitration or Med-Arb – a step dispute resolution process involving both mediation and arbitration. f. Conciliation – the adjustment and settlement of a dispute in a friendly, unantagonistic manner. (Black’s Law Dictionary)

PART II: FUNDAMENTALS OF ADR 1. Principles of ADR2 a. Promotion of party autonomy and self-determination in the resolution of disputes 1 2

Atty. Gabriel T. Robeniol. (2012). Alternative Dispute Resolution. Quezon City: Central Book Supply Inc. Pp. 28 Ibid. p. 11.

b. Recognition of ADR as an efficient tool and alternative procedure for the resolution of cases c. Enlisting of private sector participation 2. Objectives and Benefits of ADR3 a. Party Autonomy b. Speedy and Cost-Efficient c. Privacy and Confidentiality d. Awards are final and binding 3. Features of ADR4 a. ADR is a means to resolve a dispute or controversy b. ADR utilizes means and methods allowed by law c. ADR is contractual in nature d. ADR avoids court trial e. ADR usually involves the participation of a neutral third party 4. Subject Matters of ADR5  In line with the policy to encourage the use of ADR, in general, all adversarial disputes and controversies can be the subject matter of ADR, except those which by law or reasons of public policy are declared not capable of being subject to ADR. Under Section 6(b) to (h), RA 9285, the following issues are not susceptible of ADR: a) The civil status of persons b) The validity of marriage or any ground for legal separation c) The jurisdiction of the courts d) Future legitime e) Criminal liability f) In general, those which, by law, cannot be compromised, e.g. Art 2035 of the Civil Code. PART III: MEDIATION 1. Mediation Under the ADR Act of 20046 a. Place of Mediation i. General Rule: Agreement of the Parties as to the venue of mediation ii. Default Venue: Any place convenient and appropriate to all parties b. Stages in Mediation i. General Rule: The parties may choose the procedure that will govern their mediation. ii. Default Procedure: (Article 3. 17(d), Rule 5, IRR of RA 9285) 1. Opening statement of the mediator 2. Individual narration by the parties 3. Exchange by the parties 3

Marthe Lois V. Cordia. Alternative Dispute Resolution in the Philippines. Retrieved from on November 5, 2014. 4 Atty. Gabriel T. Robeniol. Supra. Pp. 12-14 5 Ibid. 6 Ibid. Pp. 29

4. Summary of the issues 5. Generalization and evaluation of option; and 6. Closure a. By the execution of a settlement agreement by the parties; b. By the withdrawal of any party from mediation; or c. By written declaration of the mediator that any further effort at mediation would not be helpful. ((Article 3. 17(f), Rule 5, IRR of RA 9285) c. Confidential and Privileged Nature of Mediation Communication  All information obtained through mediation proceedings are privileged and confidential in character d. The Mediator: Duties and Functions i. Prior to Mediation 1. On Competence a. General Rule: It is not required that a mediator shall have special qualifications by background or profession unless the special qualifications of a mediator are required in the mediation agreement or by the mediation parties. b. However, the certified mediator shall: i. maintain and continually upgrade his/her professional competence in mediation skills; ii. ensure that his/her qualifications, training and experience are known to and accepted by the parties; and iii. serve only when his/her qualifications, training and experience enable him/her to meet the reasonable expectations of the parties and shall not hold himself/herself out or give the impression that he/she has qualifications, training and experience that he/she does not have. (Article 3.6, Rule 3, IRR of RA 9385) 2. On Impartiality – A mediator shall maintain impartiality. a. Before accepting a mediation, an individual who is requested to serve as a mediator shall: i. make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation; and ii. disclose to the mediation parties any such fact known or learned as soon as is practical before accepting a mediation.

b. If a mediator learns any fact described in paragraph (a) (i) of this Article after accepting a mediation, the mediator shall disclose it as soon as practicable to the mediation parties. (Article 3.7, Rule 3, IRR of RA 9385) ii. During the Mediation 1. Confidentiality: a. A mediator shall keep in utmost confidence all confidential information obtained in the course of the mediation process. b. A mediator shall discuss issues of confidentiality with the mediation parties before beginning the mediation process including limitations on the scope of confidentiality and the extent of confidentiality provided in any private sessions or causes that the mediator holds with a party. (Article 3.7, Rule 3, IRR of RA 9385) 2. Consent and Self-Determination: a. A mediator shall make reasonable efforts to ensure that each party understands the nature and character of the mediation proceedings including private caucuses, the issues, the available options, the alternatives to nonsettlement, and that each party is free and able to make whatever choices he/she desires regarding participation in mediation generally and regarding specific settlement options. b. A mediator shall recognize and put in mind that the primary responsibility of resolving a dispute and the shaping of a voluntary and uncoerced settlement rests with the parties. (Article 3.9, Rule 3, IRR of RA 9385) 3. On promotion of respect and control of abuse of process a. The mediator shall encourage mutual respect between the parties, and shall take reasonable steps, subject to the principle of self-determination, to limit abuses of the mediation process. (Article 3.12, Rule 3, IRR of RA 9385) e. Mediated Settlement Agreement i. The concluding document in a successful mediation is called the mediated settlement agreement or settlement agreement or compromise agreement. ii. The following principles apply to the concluding agreements: 1. A settlement agreement following successful mediation shall be prepared by the parties with the assistance of their respective counsels, if any, and by the mediator. 2. The parties and their respective counsels shall endeavor to make the terms and condition of the settlement agreement complete and to make adequate provisions for the contingency of breach to avoid conflicting interpretations of the agreement.

3. 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. 4. If the parties agree, the settlement agreement may be jointly deposited by the parties or deposited by one party with prior notice to the other party/ies with the Clerk of Court of the Regional Trial Court (a) where the principal place of business in the Philippines of any of the parties is located; (b) if any of the parties is an individual, where any of those individuals resides; or (c) in the National Capital Judicial Region. Where there is a need to enforce the settlement agreement, a petition may be filed by any of the parties with the same court, in which case, the court shall proceed summarily to hear the petition, in accordance with the Special ADR Rules. 5. The parties may agree in the settlement agreement that the mediator shall become a sole arbitrator for the dispute and shall treat the settlement agreement as an arbitral award which shall be subject to enforcement under Republic Act No. 876, otherwise known as "The Arbitration Law", notwithstanding the provisions of Executive Order No. 1008, s. 1985, otherwise known as the "Construction Industry Arbitration Law" for mediated disputes outside of the Construction Industry Arbitration Commission. (Article 3.20, Rule 8, IRR of RA 9385)

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