ALTERNATIVE DISPUTE RESOLUTION
Lecture Date: January 16, 2023 Q: Who conducts mediation?
RECAP
Q: What is Alternative Dispute Resolution?
Suggested Answer: Alternative dispute resolution is any process
or procedure used to resolve a dispute or controversy other than
adjudication before a presiding judge of a court or officer of a
government agency, as defined in the ADR 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)
Q: What makes it an Alternative? What is the usual way of
settling a dispute?
Suggested Answer: Instead of litigation, you have an alternative
or different resolution other than going to court. The parties come
to an agreement instead of letting a judge decide on the resolution
of the case.
Q: What are the different types of ADR?
Suggested Answer:
The common types of Alternative Dispute Resolution are:
1. Mediation
2. Arbitration
3. Mini trial
4. Early neutral evaluation
MODES OF ADR
A. MEDIATION or CONCILIATION
SEC. 7. Scope. - The provisions of this Chapter shall cover
voluntary mediation, whether Ad hoc or institutional, other than
court-annexed. The term "mediation' shall include conciliation.
Q: What is mediation?
Suggested Answer: A voluntary process in which a mediator,
selected by the disputing parties, facilitates communication and
negotiation to assist parties in reaching a voluntary agreement
regarding a dispute.
Q. How do parties settle disputes in Mediation?
Suggested Answer: They settle by reaching a voluntary
agreement or settlement.
Q. Who dictates the content of that agreement?
Suggested Answer: The disputing parties
Q. Can the Mediator contribute inputs on the agreement?
Suggested Answer: They can have input, but it is the parties
that must come to an agreement or must settle.
Discussion: Correct. May party autonomy din in
mediation, not just in arbitration. The concept is the
parties are free to stipulate provisions that they think
are convenient as long as it is not contrary to law,
morals, or good conduct.
Q: How do you differentiate Mediation from Arbitration?
Suggested Answer: In Arbitration, there is an award, while in
mediation, the parties will agree on how to resolve the dispute.
Suggested Answer: The Mediator
Q: In Arbitration, there is an Arbitrator/s. In Mediation, there is a
Mediator. What is the role of the Mediator in Mediation?
Suggested Answer: Selected by the disputing parties, facilitates
communication and negotiation and assists the parties in
reaching a voluntary agreement regarding a dispute.
Q: Can the Mediator decide in favor of one party?
Suggested Answer: NO. The parties must decide among
themselves.
Discussion: Correct. That is the essence of mediation.
The third neutral party or the Mediator should only
facilitate the communication. In fact, if the parties
cannot reach a settlement in a failed mediation, the
Mediator cannot force the parties to settle or agree on
a settlement.
Q. How do you differentiate Mediation and Arbitration in that
aspect? What is the role of the Arbitrator?
Suggested Answer:
Arbitrator - Appointed in accordance with the agreement of
the parties or rules promulgated pursuant to this Act,
resolve a dispute by rendering an award
Discussion: Arbitrators have power like a judge. He
will receive evidence, testimonial evidence,
documentary evidence, whatever form the party will
present before the arbitrator and then decide.
Mediators, on the other hand, will only facilitate.
Q: How about their similarities?
Suggested Answer: They are similar in the sense that it is a
voluntary process which means the party would agree as to
whether or not to go into Mediation or Arbitration. So they can
decide.
Discussion: Correct. Both of them are voluntary
processes. As I mentioned earlier, if they don't want to
mediate = Failed Mediation.
Suggested Answer: The Mediator and the Arbitrator are
selected by the parties.
Q. Both of them are selected by the parties, the Mediator and
the Arbitrator. Other similarities?
Suggested Answer: They are both means of ending a dispute.
Discussion: In arbitration, the means of ending a
dispute is by giving an arbitral award.
In mediation, the output is the settlement agreement
or compromise agreement.
Usually, mediation is "pity?" disputes. Like distribution
of property, it will be a subject of mediation, but it is
complicated because it has taxation involved.
But in your presentation, you can just focus on the
subject matter as long as it is covered by mediation. So
please think of creative issues that can be discussed in
class.
 ALTERNATIVE DISPUTE RESOLUTION
o Institutional vs. Adhoc
Q. You can classify Mediation similar to Arbitration as
Institutional and Ad hoc. How would you differentiate those?
Suggested Answer:
Institutional – Same as arbitration, there is a recognized group
that will work with the parties.
Ad hoc – The parties voluntarily and expressly agree to have
their dispute or difference mediated. The mediator depends
upon the agreement of the parties.
Discussion: They have the same difference (between
Mediation and Arbitration). The difference lies in who
will be the ADR Provider on who's the Mediator. If it
belongs to an institution, or it is provided by an
institution, that would be Institutional, or if it would be
just the party agreeing to mediate their conflict before a
certain person, then it would be Ad hoc.
o Court-Annexed Mediation – ADR Act, Section 3(l)
Court-Annexed Mediation– ADR Act, Section 3(l)
Any mediation process conducted under the auspices of the
court after such court has acquired jurisdiction of the dispute.
Q. How do you differentiate Court-Annexed Mediation vs.
Court-Referred mediation?
Suggested Answer:
Court-annexed mediation
As stated in section 3, any mediation process is conducted
under the auspices of the court after such court has acquired
jurisdiction of the dispute.
Court-Referred Mediation
It is an order by the court to be conducted in accordance
with the agreement of the parties.
Q: Who provides Court-Annexed Mediation?
Suggested Answer: It is provided by the Philippine Mediation
Center (PMC).
Discussion: There is a process in litigation. Before
pre-trial proper, you will be referred to PMC. This is
somehow confusing because ADR is a way to settle
disputes outside court or an alternative to litigation. But
remember that the trust of the entire judiciary – is a
declared policy to encourage ADR as a mode of
settling disputes. Therefore, most government offices,
quasi-judicial bodies, and even the court are trying to
have a stage where parties are trying to settle before
undergoing the trial proper.
In the pre-trial brief, one of the required statements is if
parties are willing to discuss an amicable settlement. If
the judge sees that both are willing to discuss an
amicable settlement, it would be referred to PMC.
So that is Court-Annexed mediation because it is within
the auspices of the court. Within the judiciary system.
So even though the definition of ADR is settling
disputes outside the judiciary, there is still
Court-Annexed Mediation.
Actually, it’s about the process, and the process there
is what Mediation is all about. The parties would
discuss their disputes and will be assisted by a
mediator, accredited by PMC. Usually, retired judges
will facilitate. The good mediators are the ones
encouraging the parties. There are also passive
mediators because their role is really to facilitate
discussion.
In the process, the parties will meet and will tell their
stories of what happened and the reason for filing the
case. Then they will be asked if there is an offer to
settle and if the offer is acceptable or not. This is a
series of mediation in front of a PMC mediator.
Later, if mediation is unsuccessful, the parties will go
back to the court where the case was raffled. After that,
they will be referred to Judicial Dispute Resolution
(JDR) - it’s an extended Mediation facilitated by a
judge. Very similar to Court-Annexed mediation, but the
judge is more akin to neutral evaluation (judges have
more active participation).
Q: What is the reason why Court-Annexed Mediation and
Judicial Dispute Resolution are injected into the judicial
system?
Suggested Answer: To unclog court dockets because the
process would really take some time. If the parties are ready to
settle the dispute amicably, it can shorten the process, and
litigation costs and attorney’s fees will be avoided.
Q. What cases can be referred to Court-Annexed Mediation?
Suggested Answer:
1. All civil cases, except those which by law may not be
compromised (Article 2035, New Civil Code);
2. Special proceedings for the settlement of estates;
3. The civil aspect of Quasi-Offenses under Title 14 of the
Revised Penal Code;
4. The civil aspect of criminal cases where the imposable
penalty does not exceed six years imprisonment and the
offended party is a private person; and
5. The civil aspect of theft (not qualified theft), estafa (not
syndicated or large-scale estafa), and libel.
Discussion: So all Civil Cases except those which
may not be compromised. Remember, during our first
meeting. It's also about what cannot be mediated.
Q. As a review, what are those not subjects of compromise by
the Civil Code? Give some subject matter that cannot be the
subject of compromise.
Suggested Answer: We have the civil status of persons, the
validity of marriage, grounds for legal separation, future support,
the jurisdiction of courts, and future legitime.
Discussion: So if those are the subject matter of the
case, for instance, they filed an annulment case or
declaration of nullity, then that cannot be referred to
court-annexed mediation.
Q. If you file a case for a declaration of nullity, would that be
referred to Court-annexed Mediation?
Suggested Answer: No, because it must be settled through
court proceedings because it would affect the status of a person
and because the subject matter is not something you can
compromise about.
Discussion: So that's the first one among the cases
that can be referred to Court-Annexed Mediation:
1st - All civil cases except those which by law may not
be compromised
2nd - Special proceedings for the settlement of the
estate.
 ALTERNATIVE DISPUTE RESOLUTION
Q. So, what's the third?
Suggested Answer: The third is Civil Aspects of
Quasi-Offenses under title XIV of the RPC.
Discussion: So, what are the quasi-offenses?
Quasi-offenses refer to reckless imprudence and gross
negligence, those that do not have criminal intent. The
Civil Aspect of those can be settled by mediation.
Therefore those Civil Aspects can be referred to
Court-Annexed Mediation.
So if there is reckless imprudence resulting in damage
to property in a criminal case, the Civil Aspect for that
can be settled through Court-Annexed Mediation.
Q. Next, what's the fourth one?
Suggested Answer: Civil Aspects of Criminal Cases where the
imposable penalty does not exceed six (6) years imprisonment
and the offended party is a private person.
Discussion: The penalty is Crucial.
The penalty is crucial in determining whether it should
be referred to court-annexed mediation, and it's also
crucial to know whether the accused can be qualified
under probation law.
So if the client filed a case, what you should check
immediately is the impossible penalty of those charges.
Q. What's the fifth one?
Suggested Answer: The last is the Civil Aspect of theft, not
qualified theft, estafa, not syndicated or large-scale estafa, and
libel.
Q. Why is there a need to put the term "Civil Aspect"?
Suggested Answer: The point is the Criminal Aspect is not
subject to mediation because the victims of those crimes are
only witnesses. The real victim or the offended party is the
State.
Discussion: So it's a crime against the State.
This is why it is emphasized "Civil Aspect” because in
Criminal Cases, there's a Criminal Aspect, and there is
also a Civil Aspect.
The Criminal Aspect is not subject to compromise, but
there is a "Plea Bargaining Agreement or Plea
Bargaining Stage” in Criminal Procedure that you will
learn, but that is another thing.
For our purpose, the point is only the Civil Aspect of
those crimes can be subject to Mediation. Those five
(5) items that you mention, can only be covered by
JDR (Judicial Dispute Resolution).
o Court-Referred Mediation – ADR Act, Section 3(m)
Court-Referred Mediation– ADR Act, Section 3(m)
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.
Q. What is Court-Referred Mediation?
Suggested answer: Court-Referred Mediation is a means
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.
Q: What is the story or the problem behind Court-Referred
Mediation?
Suggested answer: There are parties who have an agreement.
When there is an issue that arose, they filed a case in court. For
example, they filed a collection case for a specific sum of money
before the court. One of the parties may raise that the filing of the
action in the court was premature because, in the loan agreement,
it was stated that they would settle the dispute through mediation.
Mediation should have been sought instead of going directly to the
court because it was what they agreed upon when they signed the
loan agreement.
If the court sees a mediation clause requiring that the parties
undergo mediation, the party will be referred to mediation.
Q: What is the difference between Court-Referred Mediation
from Court-Annexed Mediation:
Suggested answer:
In Court-Annexed Mediation, it is within the auspices of the court,
the jurisdiction of the court was not removed, and it is still within
the judiciary system.
In Court-Referred Mediation, parties will discuss outside of the
court since the parties had an agreement to settle the conflict
through mediation. The court would have the decision if it was
prematurely filed. If the filing was premature, it may be dismissed
or put on hold while they undergo mediation and they can go
back, depending on the judge.
B. ARBITRATION
Q: What is Arbitration?
Suggested answer: Arbitration is a voluntary dispute resolution
wherein there are one or more arbitrators appointed in
accordance with the agreement of the parties or according to the
rules promulgated by RA No. 9285 (ADR Act) and resolve a
dispute by rendering an award. (Sec. 3 (d), RA 9285)
Q: How to differentiate arbitration from mediation?
Basis ARBITRATION MEDIATION
Who Resolution of
decides/facilitates the parties is
Parties reach a
based on the
settlement which
award
is facilitated by a
promulgated by
mediator
their chosen
arbitrators
Name of Compromise
decision/agreement Agreement,
Voluntary
Arbitral Award
Agreement,
Mediation
Settlement
Suggested paragraph answer:
In Arbitration, there is a deciding body whether an
arbitrator or a panel of arbitrators, the result is an arbitral
award. In Mediation, the mediator merely facilitates, and it
is up to the party how they want to settle their dispute one
way or another and the role of the mediator is to facilitate
mediation and assist the parties. The main document that
will settle the dispute is a voluntary agreement/settlement
agreement/compromise agreement.
Q: What's the output in arbitration?
Suggested answer: They resolve a dispute by rendering an
Award.
 ALTERNATIVE DISPUTE RESOLUTION
Q: Who renders the award?
Suggested answer: The Arbitrator/s.
Q: What is the equivalent of an award in litigation?
Suggested answer: Court judgment
Discussion: So Arbitrator is the counterpart of the
judge in litigation. Judgment is rendered in the form of
an award.
Q: Who will decide the number of Arbitrators?
Suggested answer: It will depend on the agreement of the
parties. If not, according to the rules of RA No. 9285.
Discussion: It is always the parties' option if they can
decide to have a sole arbitrator or a panel of
arbitrators. Usually, it is about the cause if they will
have one or three arbitrators. It is about the cause in
choosing the number of engaging arbitrators.
Q: Can you be compelled to Arbitrate?
Suggested answer: No
Q: What if you have an Arbitration Agreement?
Suggested Answer: Yes, if there is already an agreement for
arbitration, you will be compelled to arbitrate.
Discussion: You cannot be compelled to enter into an
arbitration agreement if you don't want to settle your
dispute via arbitration. You cannot be compelled to
enter into an arbitration agreement, but if you already
agree to arbitrate, you can already be compelled to
arbitrate. For instance, if you sign a contract with an
arbitration clause, you cannot just reject the formal
demand to arbitrate. You can be compelled already
since you agree beforehand that any issues arising
from that contract will be settled by arbitration.
Q: How can we classify arbitration?
Suggested Answer: Domestic arbitration and International
Commercial Arbitration, Institutional and Ad hoc Arbitration.
o Domestic vs. International
Q: How do you differentiate domestic and international
commercial arbitration?
Suggested Answer: Domestic arbitration is the seat of
arbitration in the Philippines, while international commercial
arbitration is not necessarily in the Philippines. The governing
law in domestic arbitration is the Republic Act 9285, while in
international commercial arbitration, what governs is the Model
Law Atty. (Caveat, this is partly wrong.)
Discussion: I need to correct this. That's a common
misconception. Domestic arbitration is never about the
seat of arbitration, even if an arbitration (please
remember this) is held in the Philippines; for instance,
the parties agree that they will conduct their arbitration
in Manila Hotel does not make the arbitration
automatically domestic. Domestic arbitration has a
negative definition. It is defined in the ADR act.
According to the law, domestic arbitration is an
arbitration that is not international. So what you need to
learn is the definition of international arbitration.
Anything that is not international arbitration would
mean it is domestic arbitration. So you cannot describe
it by using the seat because even if it's international,
parties can agree to have their arbitration in the
Philippines. The seat of arbitration is just about the
venue. It’s very crucial the classification would dictate
which law should be applied. If it is international, the
model law. If it's domestic, it's the arbitration law of the
Philippines. You have to be careful in classifying what's
international and what's domestic.
Q. So, what's international arbitration?
Suggested Answer:
International Arbitration means an arbitration where:
a. the parties to an arbitration agreement have, at the time of
the conclusion of that agreement, their places of business
in different states; or
b. one of the following places is situated outside the
Philippines in which the parties have their places of
business:
I. the place of arbitration if determined in, or
pursuant to, the arbitration agreement;
II. any place where a substantial part of the
obligations of the commercial relationship is to
be performed or the place with which the subject
matter of the dispute is most closely connected;
or
III. the parties have expressly agreed that the
subject matter of the arbitration agreement
relates to more than one country.
SITUATION
Based on the First Qualification:
"A. the parties to an arbitration agreement have, at the
time of the conclusion of that agreement, their places
of business in different states; or"
QUESTION:
There were two companies doing business in the Philippines
signed that both of them were doing business in the Philippines.
They signed a contract with an arbitration clause that would settle
the dispute arising from that contract through arbitration. Later on,
one of the companies, company B, relocated its place of business
to Singapore, and then an arbitrable issue arose. So if they
arbitrate, would it be domestic or international?
ANSWER: DOMESTIC
EXPLANATION: The crucial point here is at the time of the
conclusion of that agreement. The facts presented are
1. They were both doing business in the Philippines when
they concluded the agreement.
2. They are just situated in a different state, or they are
doing business in different states only after the
execution of the agreement.
Based on the given facts, it applies to the first item where the
crucial point is at the time of the conclusion of that agreement.
It would be international if, at the time of the conclusion of that
agreement, the parties of the arbitration agreement, one is doing
business in the Philippines, for example, and one is doing
business in Singapore, or one is doing business in Hong Kong,
and one is doing business in Australia. So, the crucial point is at
the time of the conclusion of that agreement.
Q. Based on the same fact, how do you apply the second
qualification?
Suggested Answer: If one of the places of business is already
outside the Philippines.
Discussion: Compare the place of business of one of
the parties and the items (place of arbitration, where
the substantial part of the obligation or commercial
 ALTERNATIVE DISPUTE RESOLUTION
relations would be performed, and the subject matter of
the dispute).
Those three items you will compare to the place of
business of the parties. If it is situated in different
Jurisdiction, then it could be INTERNATIONAL.
Lastly, if the parties expressly agree that the subject
matter of the parties is already in more than one
country. Usually, parties would already decide that this
would be an International Arbitration based on the
distinction of A and B.
NOTE: Remember what an international arbitration is
and that it is not based on the seat of arbitration,
because the venue could be anywhere else. And
anything that is not international is domestic.
o Institutional vs. Ad hoc
Q: How do you differentiate Institutional Arbitration and Ad hoc
Arbitration?
Suggested Answer: The main difference is who
conducts/administers the arbitration.
Q: Who administers it?
INSTITUTIONAL AD HOC ARBITRATION
ARBITRATION
An institution that, on a Here, the parties themselves who
regular and permanent decide to form an arbitral panel or
basis, provides arbitration appoint a sole arbitrator
Discussion: Take note that it's not just because of
appointing an institution. For example, if the parties
appoint an organization like a private corporation, that
would not automatically mean that it would be
Institutional Arbitration already. Why? Because the
ADR provider must be engaged on a regular and
permanent basis in providing Arbitration.
Q: What makes Ad hoc arbitration faster? Why is it fast?
Suggested Answer: There are certain steps that the parties may
agree to resolve on their own. There are no specific steps; it only
depends on the parties. it is more cheap bc they have no
additional fees in the process. while in institutional arbitration, they
will shoulder the fees of the arbitrator
Q: Who will shoulder the Ad hoc arbitration?
Suggested Answer: It will be shouldered by the parties.
Q: How is it (Ad hoc) cheaper?
Suggested Answer: It is cheaper because certain steps are
voluntary.
Discussion:
Ad hoc Arbitration
The advantages of Ad hoc arbitration are that parties
will have more control. It doesn't necessarily or
automatically mean that it's less formal. Even if it is Ad
hoc, the parties can adopt some institutional rules. If
the parties want Ad hoc arbitration but can't start, they
can usually adopt a process of an institutional rule.
Institutional Arbitration
In Institutional, since it's already permanent and thus
provides arbitration regularly, there is already
predictability and certainty. You can study the rules in
advance. You already know what will be the next step.
In Ad hoc arbitration, all items are open for discussion.
Common Misconception of Ad hoc Arbitration
The common conception is that Ad hoc arbitration is
fast. I think that's also how the textbook describes it.
However, in practice, it is not. It's more difficult to form
because, in the appointment of arbitrations, it would
already take months to a year. Compared to
Institutional Arbitration, you just go to PDRCI and
choose your arbitrators among their accredited
arbitrators. So in practice, Institutional Arbitration is
faster.
I understand their answer that it can be faster because,
technically, you can skip steps and shorten the days.
Later on, in your report to PDRCI or PICCR? -- You
would need to agree on, for example, 30 days to
submit your claims and 30 days to submit your counter
affidavit (something like that). There's a period. In Ad
hoc, if you really want it fast, you can just agree to give
the parties five days or ten days, but in practice, the
reason why they chose Ad hoc is that they want more
time. That's why it's slower if it is Ad hoc.
o Concept of Party Autonomy
Article 1.2. Declaration of Policy.
It is the policy of the State: (a) To promote party autonomy in
the resolution of disputes or the freedom of the parties to make
their own arrangements to resolve their disputes; (empower
parties or the disputants in the manner of resolving their
disputes)
Q: What's the concept of party autonomy in arbitration?
Suggested Answer:
It is the policy of the State:
(a) To promote party autonomy in the resolution of disputes or
the freedom of the parties to make their own arrangements to
resolve their disputes; (empower parties or the disputants in the
manner of resolving their disputes)
➯ means power given to the parties to choose the law
governing the contract. Party autonomy enhances the
predictability and certainty within the parties. Also, it recognizes
the parties who may be in the best position to
choose/select/determine the set of legal principles that will be
most suitable for their contract.
➯ It is the freedom of the parties to make their arrangements to
resolve their disputes.
Q: What is the subject matter of their discretion?
Suggested Answer: Party autonomy pertains to the power of the
parties to enter into stipulations they think convenient.
Q: In arbitration, what do they agree about? What is crucial for
them to have the power to agree about?
Suggested Answer: They are given the option to agree on
certain rules governing the arbitration proceeding.
Discussion: It is mainly about procedural rules. the
parties are free to agree on the venue and days of the
parties' submission. Later on, we will discuss the
procedure, but they are very free to discuss how many
days are given to each of the parties, when and where
they will conduct the arbitration, and in what language
they want to conduct it, most of the items in the
procedure of the arbitration, even the sequence of
presenting.
In Litigation, as a general rule, state your claims and
then the defense or respondent. In Arbitration, you can
agree on the reverse trial idea. So defense first, then
 ALTERNATIVE DISPUTE RESOLUTION
claims. It is usually done when the allegation is
negative.
MINI-TRIAL
ADR Act, Section 3(u)
ADR Act, Section 3(u)
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.
Q: What is the output of a Mini-Trial?
Suggested Answer: A negotiated settlement or a mediated
settlement.
Discussion: The difference between a Mini-Trial and
Mediation is that in Mediation, the parties are just
discussing. But in a Mini-Trial, it is the panel of
decision-makers. So, if a party to a contract or parties
to a contract are both corporations, they will be the
ones to stipulate.
For example, other decision-makers can include a
manager of tenure, or it can also be on a CEO level.
The idea is the decision-makers must be reliable and
qualified so that they can represent the company.
Mini-trial is like mediation. But since corporations are
involved, they would rather discuss with senior
decision-makers of the company.
Q: Is a neutral third party required? Do they need a mediator or
arbitrator?
Suggested Answer: No, but they may have one if the parties opt
for one.
Discussion: What will happen is that both parties will
have a panel of senior decision-makers, and then they
will try to hear each other's side once the parties
present their sides.
Again, it is like mediation because they are deciding on
the case involving them. But here, the premium is the
senior decision-makers in the company.
EARLY NEUTRAL EVALUATION
ADR Act, Section 3(n)
ADR Act, Section 3(n)
"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;
Q: What is Early Neutral Evaluation?
Suggested Answer: "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 (ADR Act, Sec 3 (n)
Q: How do you differentiate this with Mini-Trial?
Suggested Answer: In a Mini-Trial, the parties discuss the merits
of their cases before the panel of senior decision-makers. While in
Early Neutral Evaluation, the parties, including their lawyers,
present the merits of their cases before an Experienced Neutral
Person with expertise in the subject substance of the dispute.
Discussion:
Judicial Dispute Resolution (JDR) is a form of Early
Neutral Evaluation because the judge will give its
honest opinion—it's an unbiased opinion on the case.
Actually, Early Neutral Evaluation, while it is mentioned
as a form of ADR, I think it is not a form of ADR
because it does not settle disputes.
The idea of ADR is to settle disputes. In the first three
kinds, the dispute will end because the issue will be
extinguished by the mediated settlement, a
compromise agreement, or an arbitral award.
Here in Early Neutral Evaluation, there is only a
non-binding assessment. In fact, the parties can take it
or not because it is non-binding. It is part of the pre-trial
phase, so if the parties, for instance, agree on the
non-binding assessment, then they can also enter into
a compromised agreement. They can sign a mediated
settlement.
But, as it is per se, Early Neutral Evaluation is just a
phase for it would help litigation. It would help any
dispute settlement, but it will not end a dispute per se
because the product is just a non-binding assessment.
Therefore, there is still an issue because it is not yet
settled unless the parties adapt the nonbinding
assessment.
The nonbinding assessment is just advice. The parties
might take it or not. If they take it, then it will result in a
mediated settlement.
If not, they will choose another mode of ADR:
1. Mediation
2. Arbitration
3. Mini-Trial or
4. Litigation.
So it doesn't end a dispute which is the main point of
an Alternative Dispute Resolution.
Lecture Date: January 23, 2023
RECAP
The Common Modes of Alternative Dispute Resolution
1. Arbitration
2. Mediation
3. Early-Neutral Evaluation
4. Mini-trial
We also discussed how they are classified:
1. Ad hoc
2. Institutional
We also discussed:
1. Court referred mediation
2. Court annexed mediation
3. Concept of Party Autonomy – a key characteristic of
alternative dispute resolution.
MEDIATION
Discussion: This is a remedy readily available to the
parties. Here, it does not necessarily need the presence of
legal counsel. Although mediation is in a formal sense, it is
 ALTERNATIVE DISPUTE RESOLUTION
usually the parties who avail the assistance of a lawyer. It is
always the first resort. It is the easiest, fastest, and
cheapest way to resolve a dispute.
Any contract should contain a mediation clause to explore
any possibility of an amicable settlement.
Q: What is mediation?
Suggested Answer: It is a voluntary process wherein there is a
mediator appointed by the parties who will help them in facilitating
the communication and negotiation in assessing the parties until
they reach a voluntary agreement.
Q: What is the output of a successful meditation?
Suggested Answer: A mediated settlement agreement.
Q: Who facilitates the mediation?
Suggested Answer: Mediator
Q: What is the difference between mediation and arbitration?
Suggested Answer: In arbitration, there is an arbitrator or
arbitrators to whom the parties also agree. While in mediation,
there is a mediator. The output of the arbitration is the award. In
mediation, it is the mediated settlement agreement.
Q: What is the difference between the role of the arbitrator and
the mediator?
Suggested Answer: A mediator can recommend, but it will be the
parties who will come up with an agreement. In arbitration, the
arbitrator has the final decision, they can provide the final
decision.
Discussion: In mediation, although they have a
mediator, the parties will still stand, the mediator will
only facilitate negotiation and communication but the
settlement itself, whether they would settle or not.
Unlike an arbitrator, they submit their issues or disputes
to an arbitrator or arbitrators, as if a judge will render a
decision.
SCOPE
ADR Act, Chapter 2, Section 7
Scope. - The provisions of this Chapter shall cover voluntary
mediation, whether ad hoc or institutional, other than
court-annexed. The term "mediation' shall include conciliation.
Q: What is the scope of the provisions of mediation in the ADR
Act? Are all the mediations covered in the ADR Act?
Suggested Answer: It only covers voluntary mediation, whether
ad hoc or institutional, other than court-annexed mediation.
Q: How about court-referred will it be covered?
Suggested Answer: No, court-annex and court-referred are
different, it is the court-annexed that has a different rule.
Q: What is the difference between court-annexed and
court-referred?
Suggested Answer: Court-annexed mediation is conducted
under the auspices of the court after the court has acquired
jurisdiction over the dispute. While court-referred mediation is
conducted by order of the court based on the agreement of the
parties.
Discussion: The case is prematurely filed, sometimes
the court will say that this case should have first held a
mediation, you have a provision that agreeing to any
action arising from this agreement must first be
resolved in mediation. So the court will refer the dispute
to mediation, outside the court.
In court-annexed- it is the PMC .
Q: What is the difference between court-annexed and
court-referred?
Suggested Answer: It will be governed by the PMC rules, so
there is a consolidated and revised guideline to implement the
expanded coverage of court-annexed mediation and judicial
dispute resolution. There is a Supreme Court issuance on that.
APPLICATION AND INTERPRETATION
ADR Act, Chapter 2, Section 8
Application and Interpretation. - In applying construing the
provisions of this Chapter, consideration must be given to the
need to promote candor or parties and mediators through
confidentiality of the mediation process, the policy of fostering
prompt, economical, and amicable resolution of disputes in
accordance with the principles of integrity of determination by the
parties, and the policy that the decision-making authority in the
mediation process rests with the parties.
Q: What are the factors in interpreting the provisions of
Mediation? How do you interpret and construe the provisions?
Suggested Answer: You construe it in consideration to promote
candor of the parties and mediators through the confidentiality of
the mediation process, the policy, and fostering economical and
amicable resolution of disputes in accordance with the principles
of integrity and determination of the parties and the policy that the
decision-making of the mediation process rest with the parties.
Q: How do you promote candor?
Suggested Answer: Both parties have the opportunity to say
what their side is.
10:45 21:30
CONFIDENTIALITY OF INFORMATION
Rule 9, Article 3.21
Confidentiality of Information - 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, mediator, or non-party participant may refuse
to disclose and may prevent any other person from
disclosing confidential information.
c. Confidential information shall not be subject to
discovery and shall be inadmissible in 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
a mediation.
d. In such an adversarial proceeding, the following
persons involved or previously involved in a mediation
may not be compelled to disclose confidential
information obtained during the mediation:
i. the parties to the dispute;
ii. the mediator or mediators;
 ALTERNATIVE DISPUTE RESOLUTION
iii. the counsel for the parties;
iv. the non-party participants;
v. any person hired or engaged in connection
with the mediation as secretary, stenographer,
clerk or assistant; and
vi. any other person who obtains or possesses
confidential information by reason of his/her
profession.
e. The protections of the ADR Act shall continue to apply
even if a mediator is found to have failed to act
impartially.
f. A mediator may not be called to testify to provide
confidential information gathered in mediation. A
mediator who is wrongfully subpoenaed shall be
reimbursed the full cost of his/her attorney’s fees and
related expenses.
Information is not subject to discovery.
Q: What is this discovery about?
Suggested Answer: discovery is a formal process. If you want to
find out information that the other parties have, you use the
modes of discovery
Q: What are the modes of discovery under the rules of court?
Suggested Answer:
1. Deposition
2. Written interrogatories
3. Request for admission
4. Request for production or inspection of documents
Q: What if it is confidential information from mediation
proceedings? Can we use the modes of discovery to extract
that information?
Suggested Answer: NO.
Q: What is the third effect of the confidentiality rule?
Suggested Answer: A mediator cannot be called to testify about
the information gathered in mediation.
LITIGATION- you can ask the court to subpoena a
witness to testify and provide information
MEDIATION- you cannot subpoena a mediator to testify
confidential information
Discussion: Discovery is a formal process in court. There are
several modes of discovery under the rules of court- deposition,
written interrogatories, request for admission, and request for
production or inspection of documents.
In litigation proceedings, halimbawa may evidence ka na wala
sayo pero nasa kalaban and then you want to produce it in court.
Hence, what you do is use modes of discovery. You file a request
for admission or a request for the production or inspection of
documents.
Q: Is this rule on confidentiality in mediation absolute?
When you go to adversarial proceedings like court litigation, you
file a civil or criminal case. You cannot use that mode of discovery
para palutangin yung mga evidence na nakuha from mediation
because it's confidential and privileged in nature.
Ang immediate reaction is confidential, you cannot use the mode
Q: How can it be waived? Requirement.
of discovery to extract information relating to mediation
proceedings.
A mediator may not be called to testify to provide information
gathered in mediation
In litigation, you can subpoena witnesses to testify on certain
matters or be interrogated but bc mediation is confidential, you
cannot request the court to issue a subpoena to a mediation to
testify or provide information relating to the mediation.
Q: Who are those covered by the confidentiality rule?
Suggested Answer:
1. Parties to the dispute
2. Mediator
3. Counsel to the parties
4. Nonparty participants
5. Any person hired or engaged as secretary, stenographer,
or assistant
6. Any person who obtains or possesses confidential
information by reason of his profession.
7. Parties are not required to have counsel, but they are
covered under the confidentiality rule.
Discussion:
Non-party participants are witnesses of the mediation
proper.
Any person hired or engaged in connection with the
mediation. as secretary, stenographer, clerk, or
assistant.
Those are people who are involved in the mediation
process in such a case that they are working directly in
the process
Expert witnesses who testify, such as doctors or
architects, and resource speakers. Amicus curiae but in
a loose term. Those who give advice are sought after.
o Waiver of Confidentiality
IRR of ADR Act, Rule 9, Article 3.22
Waiver of Confidentiality.
a. 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.
b. With the consent of the mediation parties, a 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.
c. A person who discloses confidential information shall
be precluded from asserting the privilege under Article
3.21 (Confidentiality of Information) 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 damage as a result of the
disclosure of the confidential information, he/she shall
be entitled to damages in a judicial proceeding against
the person who made the disclosure.
d. A person who discloses or makes a representation
about mediation is precluded from asserting the
privilege mentioned in Article 3.21 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 or
disclosure.
Suggested Answer: NO.
● It can be waived
● There are exceptions
Suggested Answer: 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.
o Exceptions to Privilege
 ALTERNATIVE DISPUTE RESOLUTION
Rule 9, Article 3.23
Exceptions to the Privilege of Confidentiality of Information.
a. There is no privilege against disclosure under Article
3.21 in the following instances:
i. in an agreement evidenced by a record
authenticated by all parties to the agreement;
ii. available to the public or made during a
session of a mediation which is open, or is
required by law to be open, to the public;
iii. a threat or statement of a plan to inflict bodily
injury or commit a crime of violence;
iv. intentionally used to plan a crime, attempt to
commit, or commit a crime, or conceal an
ongoing crime or criminal activity
v. 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; but this exception does not
apply where a child protection matter is
referred to mediation by a court or where a
public agency participates in the child
protection mediation;
vi. sought or offered to prove or disprove a
claim or complaint of professional
misconduct or malpractice filed against a
mediator in a proceeding; or (vii) 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 a
mediation.
b. 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 a need for the
evidence that substantially outweighs the interest in
protecting confidentiality, and the mediation
communication is sought or offered in:
i. a court proceeding involving a crime or
felony; or
ii. 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.
c. A mediator may not be compelled to provide evidence
of a mediation communication or testify in such a
proceeding.
d. If a mediation communication is not privileged under an
exception in sub-section (a) or (b) hereof, only the
portion of the communication necessary for the
application of the exception for non-disclosure may be
admitted. The admission of a particular evidence for
the limited purpose of an exception does not render
that evidence, or any other mediation communication,
admissible for any other purpose.
Discussion:
—---- the part before this was not transcribed.
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
one instant the parties decide mag mediate in a
public place, then if wala kang expectation of
privacy there, how can you tell me not to disclose
it when were openly discussing it in public. It’s just
reasonable common sense.
3.) a threat or statement of a plan to inflict bodily
injury or commit a crime of violence;
If a crime is planned, you cannot invoke the
privilege. It is connected to the principle “you
should go to court with clean hands”. Hindi yung
nag plan ka ng crime tapos sabihin mo
confidential. It is by reason of public interest
4.) intentionally used to plan a crime, attempt to
commit, or commit a crime, or conceal an ongoing
crime or criminal activity.
It is connected to the number 3. If it's the public
interest, it is a crime. You cannot invoke na that is
a privilege in nature.
(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; but
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;
yung mga women’s protection. Kahit yung mga
child cases. But may exception dito:
“but 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”
May mga DSWD report, for instance, privilege din
yun kasi this exception will not apply. Mga may
mga pinoprotect. Child, mga women's
protection/right matter.
(6) sought or offered to prove or disprove a claim or
complaint of professional misconduct or
malpractice filed against a mediator in a
proceeding, or
Dba we mentioned last time on the question of
what is the liability of ADR providers. We
mentioned that they don’t have liabilities as a
general rule. Sa admin code, remember sabi natin
wala silang liability EXCEPT: manifest bad faith,
there's fraud. So if you’re filing for liability due to
that manifest partiality, bad faith, of course, ang
evidence mo is information during the proceeding
to show na may bad faith, na may partiality. So
common sense din sya. If this is about the
mediation proceeding, the liability of the ADR
provider can't be left without a remedy. Ang
evidence ko can be obtained through mediation
because that's where my cause of action arises.
So meaning exception dun sa privilege because I
can present that evidence to prove that the ADR
provided/Mediator is may grossly negligent, in bad
faith, so that’s what you call misconduct
malpractice filed by the mediator.
(7) sought or offered to prove or disprove a claim of
complaint of professional misconduct of
malpractice filed against a party, nonparty
participant, or representative of a party based on
conduct occurring during a mediation.
An example of this is an expert witness like a
doctor. Nag testify siya ng mga medical
malpractice case. I am thinking for instance may
doctor and then witness siya sa mga mediation,
tapos di siya pwedeng mag imbento imbento duon
ng mga medical term or medical statements and
later on claim bakit mo yan sinasabi dito
confidential yung sinabi ko ah. Kasi they are still
bound by their professional oath. Hindi pwede later
on for example yung *inaudible* yung sinabi ko sa
mediation tapos nung kinakasuhan na,
nagstatement ng mali mali sasabihin niya,
confidential yung sinabi ko. No! they are
professionals, even if confidential yung nature
nung mediation if it is about their professional
 ALTERNATIVE DISPUTE RESOLUTION
misconduct or malpractice, the proceedings during
the mediation can still be used in that case.
(b) There is no privilege under Section 9 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 a
need for the evidence that substantially outweighs
the interest in protecting confidentiality, and the
mediation communication is sought or offered in:
This is a very generic and subjective exception. So
if some other consideration outweighs the
confidentiality nature of the proceeding, there are
enumerated cases here, court proceedings
involving a crime or felony, proceedings to prove a
claim or defense under the law. So if there are
more pressing public interest concerns,
confidentiality can be trumped. It's not an absolute
shield you can use so that the entire mediation
process cannot be disclosed.
We should be aware of this entire process
because ang initial reaction lang natin ay bawal
i-disclose kasi confidential Remember that there
are rules and exceptions When you become a
lawyer and wants to use the information in
mediation, then you check these rules. balikan nyo
if nag fall under the exception, and I think this
letter B is a catch-all phrase. You can always
argue that the need for evidence substantially
outweighs the interest in protecting confidentiality.
So you will then be asked to argue and present
your side how do you think or how can you support
the argument
Q: So, what are the other rules?
Suggested Answer:
The other rule is:
- If a mediation communication is not a privilege under the
exception under subsection A/B, only the portion of the
communication necessary for XXX
Q: What does it mean? Why is there a need to state it?
Discussion:
If you use the waiver, i-waive yung confidentiality,
kailangan buohin mo yung picture. You cannot
selectively waive (i.e. confidentiality of this fact, waiving
the confidentiality of this portion), that’s about favor.
Pero, if you claim that you can disclose this because
the confidentiality rule does not cover this because it
falls under the exception, then this rule will apply only to
this portion.
For instance, yung plan lang ay about to commit the
crime or related to professional malpractice/misconduct,
hindi yung entire proceeding ang kailangan i-disclose
just because it falls under the exception. Unlike yung sa
waiver kanina, sinasabi natin bawal selective. Ang
sinasabi sa portion na ito, if it falls under the exception,
is only limited to those related to the exception.
Planning of a crime, hindi na man siguro buong
mediation proceeding is about planning a crime or
admission to the planning of a crime, or medical or
professional malpractice or misconduct. So dapat
limited lang doon.
o Prohibited Mediator Reports
IRR of ADR Act, Rule 9, 3.24
Non-Reporting or Communication by Mediator.
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 may make a
ruling on a dispute that is the subject of a mediation, except:
a. to state that the mediation occurred or has terminated,
or where a settlement was reached; or
b. as permitted to be disclosed under Article 3.23
(Exceptions to the Privilege of Confidentiality of
Information).
Q: How about the mediator?
Suggested Answer: A mediator may not be compelled to provide
evidence of mediation, communication, or testify in such a
proceeding.
Discussion:
What is the evidence of mediation if bawal magprovide
ng evidence? Anong gagawin nya?
According to the rules, pwede niyang sabihin that the
mediation has occurred. As mentioned a while ago, this
ADR act applies only to voluntary mediation other than
court annexes. But yung kwento ko is about court
annex because the rule is the same.
So yung mga mediator sa PMC, may personal notes
yan, may notebooks sila para malaman kung saan
nagtapos ang proceeding. But they will not submit it to
court. Pag nag terminate yung proceeding, pwede lang
niyang sabihin na “Parties amicably settled or failed to
settle amicably.” Even if it is not court-annexed, the
mediator can make that statement. It is essential
because imagine later on nag-file ng case sa court.
Sabi nung isang party, “According to our provision,
before filing any case, dapat may mediation tayo”. That
would trigger a court intervention. Pero if nag-undergo
na kayo ng mediation, kailangan mo munang masabi
na “No, nagmediation na kami, thus this is not
prematurely filed.
Q: So what is your evidence na nag mediation na kayo if
confidential ang mediation?
Suggested Answer: The mediator can simply attest that the
mediation has occurred and has been terminated. Hindi na
idi-discuss kung ano ang napag-usapan. But this is essential.
Discussion:
Remember that you are not compelled to enter into
mediation or coerced to sign into compromise
agreement kahit na binigyan ka ng court ng time to
discuss with the other party.
PROCEDURE ON MEDIATION
o Appointment of mediator
Q: Who can be appointed as a mediator?
Discussion:
Anyone who the parties think is qualified. No Special
qualifications. Everyone can mediate if the parties feel
that you are qualified. It is with connection, trust,
character integrity, and reputation.
Parties are free to appoint unless they agree on some
qualifications in their mediation contract. For example,
 ALTERNATIVE DISPUTE RESOLUTION
they have a lease agreement, and there’s a clause that
says “any disputes shall be settled first by a mediation.”
They can add “The parties may choose a mediator with
such qualification (i.e., lawyer, real estate expert). In the
absence of such, the parties are free to appoint a
mediator as long as both of them agree.
o Mediator’s Disclosure and Conflict of Interest
ADR Act, Section 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:
i. 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
ii. disclosure to the mediation parties any such
fact known or learned as soon as is practical
before accepting a mediation.
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.
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. This Act does not require 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.
Q: What should the appointed mediator do before accepting the
appointment as a mediator?
Suggested Answer: The mediator should disclose any conflict of
interest that may hinder the mediation process between the
parties.
Q: How do you know that there is a conflict of interest?
Suggested Answer: For example, if the mediator is personally
known by one of the parties.
Q: So, what kind of conflict of interest should you disclose?
Does it need to be financial?
Suggested Answer: Conflict of interest that shows past
relationships between the party and the mediator.
Discussion:
The basis of conflict of interest that has to be disclosed
is first financial or personal interest in the outcome. For
instance, if it is a land dispute and the mediator is a
child or relative of one party, he is interested in the
claims. Note that this will not disqualify a mediator. He
must disclose such a fact because, later on, the parties
may choose to trust the mediator regardless. So, even
after disclosing past relationships, the parties can agree
with the mediator. What is needed is that the mediator
should have candor. He has to be candid. Informed
consent is needed. If the mediator has already
disclosed such a fact, they can still push through with
the appointment if the parties agree to it.
Q: How about if a personal or financial interest occurs during
the mediation process? So the mediator was appointed
because he did not disclose any conflict of interest. Still, later
on, he realized that he had a personal or financial interest in the
case or that he was a relative of one of the parties. What is the
obligation? Is there still an obligation to disclose in those
instances?
Suggested Answer: Yes, the mediator needs to disclose any fact
learned as soon as possible when the fact is known to him and to
both parties that may cause disturbances or impartiality when it
comes to the mediation process
Discussion:
Even if the conflict of interest or the possible source of
impartiality arises later, there is still an obligation to
disclose.
o Participation and representation in mediation
ADR Act, Chapter 2, Section 14
Participation in Mediation.
Except as otherwise provided in this Act, a party may designate a
lawyer or any other person to provide assistance in the
mediation. A lawyer of this right shall be made in writing by the
party waiving it. A waiver of participation or legal representation
may be rescinded at any time.
Q: During the mediation proceeding, are you required to be
represented by a lawyer? Yes or no?
Suggested Answer: No, they are not required to be represented
by a lawyer or counsel, but it is an option available to them.
Discussion:
Also, for example, if you issued an SPA for someone to
attend the mediation on your behalf if you attend, that
SPA is considered revoked. If you are there, you can
verbally say that the SPA you issued is rescinded, and
you can represent your own self. So even if you issued
an SPA, you could still rescind that SPA and represent
yourself.
o Venue
IRR of ADR Act, Section 7
Agreement of Parties on the Place of Mediation.
The parties are free to agree on the place of mediation. Failing
such agreement, the place of mediation shall be any place
convenient and appropriate to all parties.
Q: Ok, let’s go to the venue. Where should we conduct
mediation?
Suggested Answer: in the place where the parties agree.
Q: What if they failed to stipulate an agreement on where to
conduct it?
Suggested Answer: in a place where it is convenient for all of the
parties.
Q: Who would determine if the place is convenient and
appropriate for all of the parties?
 ALTERNATIVE DISPUTE RESOLUTION
Suggested Answer: it is the parties. By the concept of Party
Autonomy, the parties in a mediation are powerful, and they can
decide on everything
SITUATION
For example, there is a Lease Agreement, and there is a
clause that provides that any action or case arising from this
agreement should be settled through mediation. The
mediation should be conducted in Makati City. The Mediator
should be a Real Estate Consultant and a licensed Financial
Advisor. Makati City is the stipulated venue. Now, the parties
want to conduct it already in Quezon City because they
moved their residence there, so they want the mediation to
be conducted there, is it possible?
- Yes.
Discussion:
The stipulation is in Makati City, but the parties can
mutually agree to transfer the venue, so it is like the
amendment of the agreement, as long as it is mutual.
But you cannot do it unilaterally. You cannot unilaterally
ask for an amendment to that agreement. But if the
facts are such that both parties mutually want it
changed, and both of them want to conduct it
elsewhere other than in Makati City, then that’s
possible.
When you answer the question, where should the
mediation take place? The answer is always the parties
are free to agree on the place of mediation. It should
take place where the parties agreed it to happen. It is
subject to the agreement of the parties.
The second layer of the answer is that if there is no
agreement as to the venue, then the place of mediation
shall be any place convenient or appropriate for all the
parties. But this is still subject to the agreement of the
parties. It’s just that, for instance, if the parties did not
have an initial agreement, your mediation clause is
silent on the venue, then the parties are free to agree
on anywhere as long as it is mutually agreed.
o Effect of Agreement to Submit Dispute to Mediation
Under Institutional Rules
IRR of ADR Act, Chapter 2, Section 16
Effect of Agreement to Submit Dispute to Mediation Under
Institutional Rules.
An agreement to submit a dispute to mediation by any institution
shall include an agreement to be bound by the internal mediation
and administrative policies of such institution. Further, an
agreement to submit a dispute to mediation under international
mediation rule shall be deemed to include an agreement to have
such rules govern the mediation of the dispute and for the
mediator, the parties, their respective counsel, and nonparty
participants to abide by such rules. In case of conflict between
the institutional mediation rules and the provisions of this Act, the
latter shall prevail.
Q: What is the effect of an agreement to submit a dispute to
mediation under institutional rules since you said mediation
would happen following the rule of PDRCI?
Discussion:
The agreement shall be bound by the policies of such
institutions. If you agree with it, even if it is only a
one-liner saying “mediation under the PDRCI,” that
already implies that you already agreed to be bound by
the rules of that institution would now govern the
mediation process.
So before agreeing and stipulating that statement, be
sure to read it and agree with those rules because you
are not required to follow them. You are free to stipulate
so or invent your own rules. But if you think it is fair,
then it is okay for simplicity and fast-tracking of the
rules. You can just adopt the PDRCI or PCCI rules.
Q: What if they failed to stipulate an agreement on where to
conduct it?
Suggested Answer: in a place where it is convenient for all of the
parties.
o Enforcement of Mediated Settlement Agreement
IRR of ADR Act, Chapter 2, Section 17
Enforcement of Mediated Settlement Agreement.
The mediation shall be guided by the following operative
principles:
a. A settlement agreement following successful mediation
shall be prepared by the parties with the assistance of
their respective counsel, if any, and by the mediator.
The parties and their respective counsels shall
endeavor to make the terms and condition thereof
complete and make adequate provisions for the
contingency of breach to avoid conflicting
interpretations of the agreement.
b. 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.
c. If the parties so desire, they may deposit such
settlement agreement with the appropriate Clerk of a
Regional Trial Court of the place where one of the
parties resides. 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 such rules of procedure as may be
promulgated by the Supreme Court.
d. 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 for mediated dispute outside
of the CIAC.
Q: Who prepares the settlement agreement?
Suggested Answer: The parties, with their counsel's assistance,
if there are any.
Q: Are the parties required to sign it?
Suggested Answer: Yes, they shall sign the settlement
agreement.
Q: How about their counsel?
Suggested Answer: Yes.
Q: How about the mediator?
Suggested Answer:
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He shall certify that the contents of the settlement agreement are
explained to the parties in the language known to them.
For instance, the settlement agreement was written in English.
Then, later on, when the agreement is to be enforced, one of the
parties will claim that he did not understand the agreement and
that he only signed it. Then the certification of the mediator is
prima facie evidence that the agreement was already explained.
The certification will certify that the mediator has explained the
contents to the parties. When the parties signed it and were
certified by the mediator, that implies that there is some
explanation for what happened.
Q: What do you do after the settlement agreement? Are you
required to submit it in court?
Suggested Answer: No, but if the parties desire, they may. They
may deposit it in the clerk of court in the place where either of the
parties resides.
Q: Where else?
Discussion:
Under the special rules on mediation, Rule 15.3, there
are more options. In ADR Act, there is only one, but
that is only one option.
Rule 15.3. The written 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 where the
principal place of business in the Philippines of any of
the parties is located;
if any of the parties is an individual, where any of those
individuals resides; or in the National Capital Judicial
Region.
Three options allow you to deposit your settlement
agreement, but it is not required.
The pro of this option is there is enforcement already. If
anyone violates the provision, you can go to court and
enforce the agreement. No need to find your copy, for
you already deposited it with the court.
Remember that mediation is just one voluntary process
to resolve a dispute. It is not an end, and it is not
required.
If you cannot resolve the issue through mediation, you
can either move to litigation or other modes of settling
disputes. For instance, you can put in your mediation
clause in your agreement that if you fail to settle
amicably through mediation, you can proceed with the
arbitration, and the sole mediator can be appointed as
the sole arbitrator.
The point is the modes of ADR are not exclusive. You
can simultaneously resort to them. You can have them
all. You can stipulate that you will undergo all the
modes before you go to court. Exhaustion of remedies.
Gadrinab vs. Salamanca, et al.,
G.R. No. 194560
11 June 2014
Discussion:
This case discusses the compromise agreement of
Gadrinab and the immutability of judgment.
There are siblings who are the heirs of Spouses Talao,
who died intestate.
Q: What do you mean when someone dies intestate?
Suggested Answer:
No will.
Here, Nestor has a conflict with the land. They agreed that the
land would be under a compromise agreement. Instead of having
a lengthy court process. They agreed to a compromise
agreement.
They are all heirs, and they are in conflict regarding their share.
Q: What was the compromised agreement in the case?
Suggested Answer: The compromised agreement states that the
property will be subject to sale, and the amount will be divided
among them the independent appraiser will appraise the proper,
and the appraisal value will be divided into four. Antonio will pay
an advance share of Francisco Galderma after the report of the
appraisal. Querva appraiser will appraise the property, and the
total rental collection and the uncollected amount up to February
2003 will be divided among the parties.
Discussion:
So essentially, the agreement is that the house is for
sale, then the siblings will share the profit from the sale.
They got an appraiser to appraise the value of the lot.
Q: What was the problem with the sale?
Suggested Answer: Nestor did not vacate his portion of the land
because he wanted to have a portion of the rentals from the land.
And then, Nora filed a motion for physical partition of the land to
the RTC.
Q: What was the ruling of the RTC?
Suggested Answer: The RTC ordered the physical partition of
the land.
Discussion:
RTC granted the motion because in accordance with
the siblings’ compromise agreement.
Q: What was the ruling of the CA?
Suggested Answer: CA dismissed the appeal and affirmed the
RTC decision, which means.
Q: What was the ruling of the SC?
Suggested Answer: SC reversed the CA ruling, which affirmed
RTC on the grounds of Article 2037 of the Civil Code that a
compromise upon the parties has the effect and authority of the
res judicata.
Discussion:
The main lesson really is there's already a compromise
agreement. So a compromise agreement already has
the effect and authority of the res judicata. So hindi
pwedeng magmagaling pa si Court sa parties. Nasabi
na ng parties, they agreed na, they signed. We will sell
it, and the proceeds will be divided among us.
One party cannot just unilaterally say that they don’t
want to sell the land, let's just have a physical partition
as in this case. BUT, you already signed the
compromise agreement. That’s the main point of any
contract, in fact. It’s a commitment. You undertake to be
bound by that provision, and the RTC or even the CA
cannot free you from your decision. The RTC and CA
should not have done that. They should have respected
the stipulation of the parties and implemented as the
Supreme Court has explained, res judicata na yan. A
resolved matter. The parties have already agreed on
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how they will settle their dispute. Therefore, it’s just a
matter of implementing disagreement.

This is how powerful mediation is, if there is already a

compromise agreement, that agreement must be
followed even if the physical partition according to the
law is different. Even if you say, the law says that a
partition is an option. No, you already agreed. So that’s
how powerful a compromised agreement is. It really
ends—it should really end a dispute.

In the entire mediation process, you appoint a mediator,

and the entire mediation proceeding is confidential and
subject to certain exceptions. The confidential nature
can be waived. The mediation proceeding can be
conducted wherever the party wants if you agree to
be… to conduct it in Makati City or be more specific like
Makati Diamond Hotel or just a public restaurant. You’re
free to stipulate on that, just be conscious of the effect
of your choice.

But as I mentioned a while ago, you are still free to

amend as long as it's mutual. If later on, you agree on
another venue you are free to do that. Anyone can be a
mediator as long as the parties appoint you, or unless
the parties require special qualifications to be a
mediator.

If there’s no special stipulation then as long as the

parties agreed that you—they want you as a mediator,
then you can be a mediator. And then, enforcement of
the settlement both parties can go home since there is a
settlement agreement signed by the parties, or if their
counsel if they have counsel, the counsel can also sign.

For the validity of the mediation agreement, it is not

required that it be signed by the mediator but the
mediator, as a good practice should certify it.

So that later on, if one of the parties says “I did not say
that, I did not understand that", the mediator should
clarify. The signature of the mediator in the settlement
agreement signifies that the mediator has explained to
the parties of the mediation agreement, the contents of
the agreement. And that explanation is a language
known to the parties. So Tagalog or any local language.