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MEDIATION
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a voluntary process in
which
mediator, selected by the
Definition of disputing parties,
facilitates
Mediation communication and
negotiation,
and assists the parties in
reaching a voluntary
agreement regarding a
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State Policy on
Mediation
promote candor of parties and mediators through confidentiality of the mediation process
foster prompt, economical and amicable resolution of disputes in accordance with
principles of integrity of determination by the parties
100$
decision-making authority in the mediation process rests with the parties
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Scope of Application
Voluntary All cases pending before an
administrative or quasi-judicial
Mediation agency that are subsequently
• ad hoc
• Institutional agreed upon by the parties to be
referred to mediation
In default of an agreement of
Our the parties on the applicable
Goals rules
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Scope of Application
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
Our mediation of their dispute by trained and
Goals accredited mediators
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Scope of Application
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
Our in violation of such agreement
Goals
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Question
May a party petition a court before
which an action is prematurely brought in
a matter which is the subject of a
mediation agreement to refer the parties
to mediation in accordance with the
agreement of the parties?
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Answer:
YES
if at least one party so requests, not
later than the pre-trial conference
upon the request of both parties after
the pre-trial conference
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Scope of Application
conciliation conducted by the
lupong tagapamayapa and
pangkat ng tagapagkasundo
under The Local Government
Our Code of 1991
Goals
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Scope of Application
judicial dispute resolution (JDR)
the mediation, conciliation and early
neutral evaluation process
conducted by the judge of a
pending case after a failed court-
Our annexed mediation and before the
Goals
pre-trial stage
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MEDIATION NON-PARTY
MEDIATOR
PARTIES PARTICIPANTS
Parties to a
Mediation
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Nature of Mediation
• non-evidentiary or non-merit based
• Arbitration • Mediation
• merits of the case Communication and
negotiation
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Classification of
Mediation
Institutional
Ad Hoc
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Institutional Mediation
An agreement to submit a dispute to mediation by an
institution shall include an agreement:
To be bound by the internal mediation and
administrative policies of such institution; and
To have such rules govern the mediation of the
dispute and for the mediator, the parties and their
respective counsels and non-party participants to
abide by such rules.
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Conduct of Mediation
• The mediator shall not make untruthful or
exaggerated claims
• The mediator has no authority to impose a
settlement on the parties.
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Conduct Of Mediation
• Parties shall personally appear for mediation
• Parties may be assisted by a lawyer.
• A party may be represented by an agent who must
have full authority to negotiate and settle the dispute.
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Stages In The
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Mediation
Process
1.
2.
opening statement of the mediator
individual narration by the parties;
3. exchange by the parties;
4. summary of issues;
5. generation and evaluation of options; and
6. closure
NOT OBLIGATORY
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How Mediation
is held
PRIVATELY
OTHERS – With Consent of ALL PARTIES
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How Mediation
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Is Closed
1. by the execution of a settlement agreement by
the parties;
2. by the withdrawal of any party from mediation;
and
3. by the written declaration of the mediator that
any further effort at mediation would not be
helpful
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Advantages Of
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Mediation
1. Confidentiality in the mediation
process;
2. Prompt, economical and amicable
resolution of disputes; and
3. The decision-making authority rests
in the parties.
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Confidential and
Privileged Nature Sections 9, 10,
of Mediation 11, and 12
Communication ADR Act
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Confidential and Privileged Nature of Minimal Powerpoint
Mediation Communication
• The ADR Act of 2004 maintains the
confidentiality of the mediation process by
declaring that all information obtained
through mediation proceeding are
privileged and confidential100$
in character.
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Confidential and Privileged Nature of Minimal Powerpoint
Mediation Communication
ADR ACT of 2004
• Confidential Information is any information, relative to the
subject of mediation or arbitration, expressly intended by the
source not to be disclosed, or obtained under circumstances that
create a reasonable expectation on behalf of the source that the
100$
information shall not be disclosed.
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Confidential and Privileged Nature of Minimal Powerpoint
Mediation Communication
Confidential Information includes:
• Communication, oral or written, including any
memorandum, note or work product;
• Oral or written statement;
• Pleadings, motions, manifestations, written statements
and reports. 100$
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Legal Effects Of Confidential And
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Privileged Nature
1. A party, mediator or non-mediator may refuse
to disclose and may prevent any other person
from discloding confidential information.
2. Confidential information shall not be subject
to discovery and shall be inadmissible in any
Our adversarial proceeding, whether judicial or
Goals quasi-judicial.
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Legal Effects Of Confidential And
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Privileged Nature
3. In an adversarial proceeding, the
following persons involved or previously
involved in mediation may not be
compelled to disclise confidential
Our information obtained during mediation.
Goals a. Parties to the dispute;
b. Mediator or mediators;
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Legal Effects Of Confidential And
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Privileged Nature
c. Counsel for the parties;
d. Non-party participants;
e. Any person hired or engaged in connection
with mediators as secretary, stenographer, clerk
or assistant; and
f. Any person who obtains or possesses
Our confidential information by reason of his
Goals
profession.
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Legal Effects Of Confidential And
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Privileged Nature
4. The protection under the ADR Act shall
continue to apply even if a mediator is
found to have failed to act impartially.
Our 5. A mediator may not be called to testify
Goals to provide information gathered in
mediation.
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Legal Effects Of Confidential And
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Privileged Nature
4. The protection under the ADR Act shall
continue to apply even if a mediator is
found to have failed to act impartially.
Our 5. A mediator may not be called to testify
Goals to provide information gathered in
mediation.
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Exceptions Based In Agreement,
Nature Of Proceedings, Crime Or
Social Justice
1. Those contained in an agreement evidenced by a
record authenticated by all parties to the
agreement.
2. Those available to the public or made during a
session of mediation which is open, or is required
by law to be open to the public.
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Exceptions Based In Agreement,
Nature Of Proceedings, Crime Or
Social Justice
3. A threat or statement of a plan to inflict bodily
injury or commit a crime of violence.
4. Communication intentionally use to plan, attempt
to commit, or commit, a crime, or conceal an on-going
crime or criminal activity.
Exceptions Based In Agreement,
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Nature Of Proceedings, Crime Or
Social Justice
5. Communication ought 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.
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Exceptions Based In Agreement, Minimal Powerpoint
Nature Of Proceedings, Crime Or
Social Justice
6. Communication sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against
mediator in a proceeding.
7. Communication sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice filed against
a party, non-party participant, or representative of a party based
on conduct occurring during mediation.
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Exceptions Based On
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Public Policy
1. Court proceeding involving a crime or felony;
2. 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
mediation.
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Limited Use Of Exempted
Evidence
Only such portion of the communication
necessary for the application of the
exception can be admitted in evidence.
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Question
Can the privilege of
information in mediation
proceedings be waived?
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Answer:
YES
Express waiver
Implied waiver
Estoppel
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Waiver of Confidentiality
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They shall be precluded from asserting the
privilege necessary to a complete
understanding of the previously disclosed
information
to the extent that the communication
prejudices another person in the proceeding
Our Be liable for damages
Goals
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Mediator
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Mediator means a person who conducts
mediation.
facilitates communication between the
parties in conflict with a view to helping them
reach a voluntary resolution to their dispute
that is timely, fair and cost-effective
Our mediator vs. arbitrator
Goals
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Selection of Mediator
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The parties have the freedom to select mediator
The mediator shall disclose his/her qualifications
upon request
No special qualification by background or
profession is required of mediators
Determined on the mediation agreement or by
Our the mediation parties
Goals
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Grounds for Refusal or
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Withdrawal
1. upon request of one of the parties
2. does not have the qualifications, training and experience
3. impartiality is in question
4. violation of any ethical standards
5. safety of any of the parties would be jeopardized
6. unable to provide effective services
7. conflict of interest
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Ethical Conduct of a Mediator
1. Competence
2. Impartiality
3. Confidentiality
4. Consent and Self-Determination
5. Separation of Mediation and Legal Advice
6. Charging of Fees
7. Promotion of Respect and Control of Abuse of
Process
8. Solicitation or Acceptance of Gift
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Ethical Conduct of Mediator
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Competence
maintain to continually upgrade his/her
professional competence in mediation skills
Impartiality
freedom from favoritism or bias
Confidentiality
shall keep in utmost confidence all confidential
information
Privilege of the Mediator
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Ethical Conduct of Mediator
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Consent and Self-Determination
ensure that each party understands
the nature and character of the
mediation proceeding
Prohibition Against Coercion
Separation of Mediation and Legal Advice
No personal or professional opinion
recommend a counsel
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Ethical Conduct of Mediator
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Charging Fees
Disclosure of Fees
Return any unearned fee/unused deposit
Adhoc Mediation Fees vs. Institutional Mediation Fees
Promotion of Respect and Control of Abuse of
Process
Mutual respect and limit abuses on mediation process
Solicitation or Acceptance of Gift
shall not accept any commission, gift or other similar
forms of remuneration
