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MEDIATION IN GENERAL

Mediation a voluntary process in which a mediator,

selected by the disputing parties, facilitates
communication and negotiation, and assists the
parties, facilitates communication and negotiation, and
assists the parties in reaching a voluntary agreement
regarding a dispute. (ADR Act of 2004)
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.
The two above are excluded from the coverage of the
ADR Act.
Other forms of mediation not covered under the ADR
act are:
Conciliation conducted by the lupong tagamapayapa
and pangkat tagapagkasundo which are covered under
Chapter 7 , Book III of The Local Government Code of
1991.
Judicial Dispute Resolution (JDR) 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 stage.
The person who conducts mediation is called the
mediator, and the parties thereto are the mediation
parties. All other parties who take part in the process
are called non-party participants who can either be
witnesses, resource persons or experts.
Mediation is non-evidentiary or non-merit based.
Compared with arbitration which takes into account the
merits of the case in the rendition of the arbitral award,
mediation focuses on the facilitation of communication
and negotiation between the parties in order to
encourage them to voluntarily settle their dispute.
Mediation is either institutional when administered by,
and conducted under the rules of a mediation
institution, and ad hoc if it is other than institutional.
An agreement to submit a dispute to mediation by an
institution shall include an agreement:
1.
2.

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.

Place of mediation:
Mediation parties are given the freedom to agree on
the place of mediation. In the absence of such
agreement, the place of mediation shall be any place
convenient and appropriate to all parties. This is called
the default venue of mediation.

Stages in mediation:
1.
2.
3.
4.
5.
6.

Opening statement of the mediator;

Individual narration by the parties;
Exchange by the parties;
Summary of issues;
Generalization and evaluation of options; and
Closure

The foregoing process is not obligatory and the parties,

under the principles of self-determination and party
autonomy may choose the procedure that will govern
their mediation.
The mediation process shall be held in private unless
the parties consent to the presence of persons other
than themselves, their representatives and the
mediator.
The mediation shall be closed and concluded by [i] by
the execution of a settlement agreement by the parties;
[ii] by the withdrawal of any party from mediation; or [iii]
by the written declaration of the mediator than any
further effort at mediation would not be helpful.

Advantages in Mediation:
1.
2.
3.

Confidentiality in the mediation process;

Prompt, economical and amicable resolution
to disputes; and
The decision-making authority rests in the
parties.

(Section 8 of the ADR Act of 2004)

CONFIDENTIAL AND PRIVILEGE
MEDIATION COMMUNICATION:

NATURE

OF

PRIVILEGED COMMUNICATION
Conversation that takes place within the context of a
protected relationship, such as that between an
attorney and client, a husband and wife, a priest and
penitent, and a doctor and patient. The law often
protects against forced disclosure of such
conversations. However, there are exceptions that can
invalidate a privileged communication, and there are
various circumstances where it can be waived, either
purposefully or unintentionally.
Confidentiality- involves a set of rules or a promise
that limits access or places restrictions on certain types
of information.
R.A. 9285 defined Confidential Information as
Sec. 3- H- "Confidential information" means 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

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source that the information shall not be disclosed. It
shall include:
1.

2.

3.

Waiver of Confidentiality
SEC. 10. Waiver of Confidentiality. - A
privilege arising from the confidentiality of
information may be waived in a record, or
orally during a proceeding by the mediator
and the mediation parties.

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 this Act;
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;
pleadings, motions manifestations, witness
statements, reports filed or submitted in an
arbitration or for expert evaluation;

A privilege arising from the confidentiality of

information may likewise be waived by a nonparty participant if the information is provided
by such non-party participant.
A person who discloses confidential
information shall be precluded from asserting
the privilege under Section 9 of this Chapter
to bar disclosure of the rest of the information
necessary to a complete understanding of
the previously disclosed information, if a
person suffers loss or damages in a judicial
proceeding against the person who made the
disclosure.

The duty of confidentiality of all parties present in a

mediation proceedings is a of matter of ETHICAL
DUTY and the RIGHT to assert the PRIVILEGED
NATURE of information obtained during mediation
proceedings is a RULE OF EVIDENCE.

A person who discloses or makes a

representation about a mediation is preclude
from asserting the privilege under Section 9,
to the extent that the communication
prejudices another person in the proceeding
and it is necessary for the person prejudiced
to respond to the representation of
disclosure.

The protective mantle of the PRIVILEGE does not

attach to:
1.
2.
3.
4.
5.

6.

7.

Those contained in an agreement evidenced

by a record authenticated by all parties to the
agreement.
Those available to the public or made during
a session of mediation which is made open,
or is required by law to be open to the public.
A threat or a statement of a plan to inflict
bodily injury or commit a crime of violence.
Communication intentionally used to plan,
attempt to commit, or commit, a crime, or
conceal an on-going crime or criminal activity.
Communication 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.
Communication sought or offered to prove or
disprove a claim or complaint of professional
misconduct or malpractice filed against a
mediator in a proceeding.
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.

If a court or administrative agency, after hearing in

camera, finds that the party seeking discovery of the
proponent of the evidence has shown that the
evidence is not otherwise available, the proactive
mantle is outweighed when:
1.
2.

A court proceeding is for the prosecution of a

crime or felony
It may prove a claim or defense that under
the law is sufficient to reform or avoid a
liability on a contract arising out of mediation.

Express waiver occurs when:

-

Contained in a record

Made orally during a proceeding by the

mediator or the mediation parties.

Implied waiver occurs when:

-

A party failed to timely object to an otherwise

objectionable question during a proceeding

Failure to object to the offer of documentary

evidence

By testifying or presenting a witness to testify

on confidential and privileged matters.

ESTOPPEL
Rooted from the principles of fair play and
equity, a person who benefits from a disclosure ought
not to prevent another form disclosing or securing
disclosure of the rest of the information, otherwise
confidential in nature, as may be necessary to
overcome the prejudice caused by such disclosure.

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Privilege of the Mediator
The mediator himself is bound by the rule on
confidentiality, in fact he may not be compelled to
provide evidence of a mediation communication or
testify in such proceedings. Section 12 and 13 of R.A.
9285 is clear
SEC. 12. Prohibited Mediator Reports. - 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 of this Chapter.

background or profession unless the special

qualifications of a mediator are required in
the mediation agreement or by the mediation
parties.
The Mediator
Parties are given the freedom to select their mediator
or request the Office for Alternative Dispute Resolution
(OADR), principally acts as the appointing authority of
mediators and arbitrators, to provide a list of its
certified mediator.
Duties and Functions

SEC. 13. Mediator's Disclosure and

Conflict of Interest. - The mediation shall be
guided by the following operative principles:

(a) Before accepting a mediation, an

individual who is requested to serve as a
mediator shall:
(1) make an inquiry that is
reasonable
under
the
circumstances
to
determinate
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
(2) disclosure to the mediation
parties any such fact known or
learned as soon as is practical
before accepting a mediation.

Mediators Costs and Fees

(b) If a mediation learns any fact described in

paragraph (a) (1) of this section after
accepting a mediation, the mediator shall
disclose it as soon as practicable.
At the request of a mediation party, an
individual who is requested to serve as
mediator shall disclose his/her qualifications
to mediate a dispute.

Mediator should disclose and explain the

basis of the reasonable costs, fees, and
charges against the parties.
The parties are free to make arrangements
as to costs and fees
Includes administration charges, mediators
fee, and associated expenses
Mediator should return any unearned fee and
unused deposits in case he withdraw from
the mediating
The mediator, or any member of his
immediate family or his agent, shall not
request, receive or accept any type of
compensation of gift from the parties

Mediator may withdraw or may be compelled to

withdraw from mediating when:

This Act does not require that a mediator

shall
have
special
qualifications
by

Precluded from making a report, assessment,

evaluation, recommendation, finding or other
communication regarding mediation
Cannot rule upon the merits of a claim and
render an award (except in mediationarbitration)
Prior to mediation
o
Maintain and upgrade his
professional competence
o
Make an Inquiry whether there are
known facts that a reasonable
individual would consider likely to
affect his impartiality
During the mediation
o
Confidentiality of all information
being given in the mediation
process
o
Ensure that each party understands
the nature and character of the
mediation proceedings and that
each party is free and able to
choose whatever he desires
regarding their participation as well
as their specific settlement options
o
Encourage mutual respect and shall
take reasonable steps to limit
abuses of the mediation process

Any of the parties requests the mediator to

withdraw
The mediator does not have the
qualifications, training and experience to

enable him to meet the reasonable

expectations of the parties
The mediators impartiality is in question
The continuation of the process will violate
an ethical standard
The safety of any one of the parties will be
jeopardized
The mediator is unable to provide effective
services
There can be conflict of interest
Other instances provided for under the IRR

2.

3.

4.

Mediated Settlement Agreements

Also called settlement agreement or

compromise agreement
A concluding document in a successful
mediation
Has the effect of res judicata binding upon
parties whether or not it has been submitted
for approval of the court
Be not executed unless judicially approved
Principles apply to these are:
o
A settlement agreement following a
successful mediation shall be
prepared by the parties
o
Mediator shall certify that he has
explained the contents of the
settlement agreement to the parties
o
Settlement agreement must be
deposited by any or both of the
parties with the Clerk of Court of the
Regional Trial Court:

Where the principal place

of business in the
Philippines of any of the
parties is located

Where any of the parties

reside

Or in the National Capital

Judicial Region
o
A petition to enforce the settlement
agreement may be filed by any of
the parties where the settlement
agreement is deposited
o
The parties may agree that the
mediator shall become a sole
arbitrator for the dispute and shall
treat the settlement agreement as
an arbitral award which shall be the
subject to enforcement under The
Arbitration Law.

Role of Counsel in Mediation

A party may designate a lawyer or any other person to
provide assistance in the mediation. This may be
waived but the waiver must be in writing and can be
rescinded at any time.
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
Encourage and assist the client to actively
participate in positive discussions and
cooperate in crafting an agreement to resolve
their dispute.
Assist the client to comprehend and
appreciate the mediation process and its
benefits, as well as the clients greater and
personal responsibility for the success of
mediation in resolving the dispute
Confer and discuss with the client the
mediation process and substance

Functions
1.

2.

3.

4.

Help their clients comprehend the mediation

process and its benefits and allow them to
assume greater personal responsibility in
making decisions for the success of
mediation in resolving the dispute
Discuss with their clients:
a. Substantive issues involved in the
dispute
b. Prioritization of resolution in terms
of importance to client
c. Understanding the position of the
other side and the underlying fears,
concerns, and needs underneath
that position
d. Need for more information or facts
to be gathered or exchanged with
the other side for informed decisionmaking.
e. Possible bargaining options but
stressing the need to be openminded about other possibilities.
f.
The best, worst, and most likely
alternatives to a negotiated
agreement.
Assist in preparing a compromise agreement
that is not contrary to law, morals, good
customs, public order, or public policy so that
the same may be approved by the court,
paying particular attention to the issues of
voluntary compliance of what have been
agreed upon, or otherwise to issues of
enforcement in case of breach.
Assist, if applicable, in the preparation of a
manifestation of claims and mutual
withdrawal of complaint and counterclaim as
basis for the court to issue an order of
dismissal