Stages of Mediation

• Stage 1 – mediator’s opening statement

• Stage 2 – parties’ opening statement
• Stage 3 – joint discussion and identification of
issues
• Stage 4 – impasse and caucuses
• Stage 5 – joint negotiation
• Stage 6 – closure and drafting of agreement
1
Stages
Stages of
of Mediation
Mediation

Mediator’s Opening
Statement
Party Opening Statement Problem
Defining Stage
Joint Discussion/Agenda
Setting
Caucusing/Impasse
Joint Negotiation
Problem
Closure/Drafting of Solving Stage
Agreement
Medium of Delivery

Confidence

Sincerity

Language or Dialect

Attitude

Physical Arrangement
MEDIATION MODEL IN PRACTICE

1. Mediator’s Opening
Statement

3. Setting of
2. Parties’ Opening
Agenda and
Statement
Issues

4. Joint Discussion,
Negotiation and 5. Generation of
Caucus Options and
Agreement Writing

Source: MDR Associates Conflict Resolution, Inc. Ottawa, Canada

 Parts of the Opening Statement
Introduction Confidential

Welcome Stages of Mediation

Mediation
Mediation Overview
Overview Ground Rules

Role of Mediator Authority to Settle

Role of Parties Questions

Voluntary Permission to Proceed

 Parts of the Opening Statement
• Greetings
Introduction Introduce Yourself •
I am __________________________.
• I am pleased to have been selected as
your Mediator.

• Correct Names and Positions

Parties’ Names
and Position • On my left is ____________________.
• On my right is ___________________.

• I commend you for choosing Mediation

Welcome
Welcome Statement as a means to resolve your disputes. By
doing so, you have given yourselves
the opportunity to solve issues in a non-
adversarial atmosphere with greater
speed and at less cost.
 Parts of the Opening Statement
Mediation Overview
• Mediation is a voluntary process for
Background resolving disputes in which an impartial
and neutral third party, who has no
power to make decisions, assist in a
face to face meeting of parties with the
basic aim of reaching a mutually
beneficial agreement.

Goals and • The GOAL to resolve issues in a

Expectations • COOPERATIVE and NON-
ADVERSARIAL way
• An attempt to find a “win-win” formula
for all.

What is needed is SINCERITY of the

Parties to resolve their dispute.
 Parts of the Opening Statement
Role of the Mediator
As Mediator, I have been trained and certified by
Training the Courts to handle issues such as yours.
My task as a Mediator, is not to act as a judge but
Role to act as a neutral and impartial conduit for the
parties. I am task to
• Help the parties meet the goals
No authority to
• Facilitate communications decide.
• Facilitate negotiations No authority to
• Facilitate resolution of issues suggest solutions.

In turn, you have the responsibility to play an

Role of Parties Parties active role here. You will be asked to speak and to
make decisions which should be fair to all.
Your lawyers are to play a supporting role and are
Lawyers expected not to dominate the proceedings. They
should offer advice when needed.
 Parts of the Opening Statement
Agreement • While you were referred to us this Mediation,
Voluntary to Mediate Mediation is voluntary. You may refuse to
undergo mediation.
• Either party may also call off the Mediation at
anytime during the proceedings.
• As the Mediator, I can also end the session if I
believe that no resolution is within reach.

Agreement
to be bound • Mediation is also non-binding.
• Either party may refused to be bound by any
proposal which he or she does not want to
agree to, unless a compromise agreement is
agreed and signed by the parties.
 Parts of the Opening Statement
• The Mediation proceedings and all its incidents
Confidentiality General Rule
are strictly confidential. As such, all admissions
and statements made during the proceedings
are inadmissible as evidence for any purpose.

Mediator’ Notes
• The Mediation proceedings shall not be
&Transcripts recorded and no transcripts shall be made.
• Any notes made by me shall be destroyed at
the end of mediation proceedings.
• Unless given the permission to do so, I will not
tell the other party of any statement said to
me in confidence or during any private
caucus.
• Neither can I be required by the Court to
Party’s
statements inform it of the admissions and statements
made by either party during the Mediation.
 Parts of the Opening Statement
Parties’ • Let me explain on how we are to proceed…
Stages of
Opening • I shall ask each party to make an Opening
Mediation Statement Statement – to tell me their story from their point
of view. If I take notes while the other party is
making his/her opening statement, it does not
mean I agree or disagree.

Matters to consider:
➔ Who speaks first? (Plaintiff, Initiating Party, Woman)
➔ Who makes Opening Statement? (client or lawyer)

Joint • After each of the party shall have made their

Discussion opening statement, we shall have a joint
discussion.
Parts of the Opening Statement
• At some point in time, I may want to talk to each
Caucus
of the parties separately. We call this a
“Caucus”.
• During a “caucus”, I will do my best to spend
equal time with each party. However, if I do
spend a little more time with one party during a
Caucus, it does not mean that I favor that party.
• All matters discussed during the Caucus is again
Confidential and I shall not inform the other party
of the discussions unless permission is granted
to me to do so.
No Time
• One advantage of Mediation is that there is no
Pressure
time pressure. This room is available for us as
long as we want and as long as our efforts are
productive.
• If you want to take a break, just tell me.
 Parts of the Opening Statement
• Here are the ground rules on how we shall
Ground Rules Rules conduct ourselves during the Mediation sessions:
(Get the parties to agree to each ground rule)
• First, let’s agree not to interrupt while one party is
speaking.
• Second, while one party speaks, the other shall
attempt to respect and listen to the views of the
other.
• Third, common courtesy shall be observed. As
much as possible, let’s avoid name-calling or
disrespectful language. No swearing please.
• Fourth, only one person speaks at a time.
• Fifth, each party shall be allowed to talk for no
more than 3 minutes at each instance.
 Parts of the Opening Statement
• The Next rule is to keep comments relevant.
Focus more on the issues and not on the
personalities.
• Do we also agree that let us keep our voices
within reasonable limits and not to shout at the
other party?
• And most importantly, do you promise to give
your full and sincere cooperation with the view of
successful resolving disputes?
• Is there any other ground rule you may want to
add?

Representatives/
Authority
Counsels • I would like to confirm your Authority to Settle…
to Settle
 Parts of the Opening Statement
• At this point, I would like to know if you have any
Questions Clarifications questions or clarifications regarding about
Mediation or any of the rules and procedures?

Permission Commitment • Before we proceed, are you willing to submit

to Proceed to Mediate
your case/dispute to Mediation?

Go Ahead • Ok then, let’s proceed. Let’s begin with you…

 Key Elements a Mediator

• Control of the Process

and
• Trust by both parties
Prof. Ronald S. Tolentino
April 15, 2013

16
 KEY WORD THAT MAKES
MEDIATION different from
LITIGATION

• Parties have control over the outcome of

their differences, disputes, or conflicts.
Prof. Ronald S. Tolentino

• However, the Mediator has control over the

April 15, 2013

process. 17
The Stages of Mediation and Communication Skills

2nd Stage of Mediation

Parties’ Opening Statement

ATTY. RONALD S. TOLENTINO

Professorial Lecturer 1
Philippine Judicial Academy
 Parties’ Opening Statement

Each party is given the opportunity to

state:
•his/her version of the facts of the dispute,

•how it has affected them, and

Prof. Ronald S. Tolentino

•how they want to see it resolved.

April 15, 2013
 Parties’ Opening Statement

MEDIATOR’S TASK
DURING Parties Opening Statement

- Listen! Listen! Listen!

- Take notes, if needed.

- List uncontroversial general points.

Prof. Ronald S. Tolentino
April 15, 2013

- Control the process and make sure that there

is no interruption from the other party.
 Parties’ Opening Statement

MEDIATOR’S TASK
AFTER Parties Opening Statement

- Ask Open-ended Questions.

- Summarize often, focusing on the positive
points.
- List uncontroversial general points.
Prof. Ronald S. Tolentino

- If the lawyer makes the initial statement, let

April 15, 2013

the party make a statement.

Prof. Ronald S. Tolentino
April 15, 2013

PARTY

FACTS
POSITION

EXCLUSIVE
 PARTY PARTY
A B

ISSUES

POSITION POSITION

FACTS FACTS
Prof. Ronald S. Tolentino

COMMON
April 15, 2013

FACTS
 COMMUNICATION SKILLS

Communication Skill Particular Skill

 Open-ended
 Questioning
 Close-ended
 Why
 Broadening
 Clarifying
2nd Stage  Interest based
 Reasoning/Explaining
 Active Listening
 Clarifying
 Summarizing
Prof. Ronald S. Tolentino

 Encouraging
Validating
April 15, 2013


 Non-Defensive
Responses
 Open-Ended Questions

• Starts with what, how, where, when and cannot be

answered with a ‘yes’ or ‘no’.
Advantages:
• Encourages people to talk freely and establishes good
rapport.
• Encourages people to identify issues, concerns, feelings and
points of view.
• Allows for a large quantity of information to be received.

Disadvantages:
• May generate lengthy detailed and unfocused responses.
• May result in loss of focus on critical issues.
 Closed-Ended Questions

• Elicits a yes/no answer or a brief response.

Advantages:
• Help narrow and focus on critical issues.
• Precise, accurate and relevant information can be obtained
quickly.
Disadvantages:
• Inappropriate use may make the questioning feel like an
interrogation.
• Overuse may harm rapport and may cause party to become
defensive.
• When used too early, may not allow for relevant information to be
introduced and discussed.
 Why Questions

• Use with CAUTION and with appropriate tone.

• May create feeling of blame and criticism and

interrogation.

Example:
Why did you decide on that?
As compared with:
How did you decide on that?
 Broadening Questions

• Useful when beginning a session or opening a discussion.

• Gives party free reign to talk and share whatever
information or point of view relevant to him/her.
• Encouraging and non-threatening.
• Additional information or unstated issues can surface.

Examples: What is your point of view on that?

Say more about that?
How did you react to that?
Please tell me more about…?
What else happened when…?
 Clarifying Questions

• Helpful for clarifying ambiguous terms.

• Moves a person from giving general descriptions to
disclosing more specific ones.

Examples:
When you say he does not care about the family’s
reputation, what do you mean by that?
Can you give an example when he did not respect you?
Can you please specify the times that he was not in his
office when you called?
 Interest-based Questions

• Allows a party to examine his interests- concerns, fears,

hopes, expectations, assumptions and values.
• Encourages understanding and hunching of underlying
interests or priorities behind a person’s position.

Examples:
What concerns you about…
What do you fear will happen if…
What were you expecting when…
How were you expecting her to respond to…
What do you value about…
 Reasoning/Explaining Questions

• Helpful in bringing out the reason behind a person’s

position, perspective or point of view.
• Encourages reflection.
• Provides understanding.

Examples:
What causes you to think that she should…
What makes that frustrating for you?
How did you decide on that?
What makes that the best outcome for you?
FACTORS THAT DETERMINE SUCCESS
OR FAILURE OF NEGOTIATION

• ZOPA
• ALTERNATIVES
–BATNA
–MLATNA
–WATNA
 ZOPA
• "Zone of Possible Agreement" (ZOPA) exists if
there is potential agreement that would benefit
both sides more than their alternatives.
• To identify ZOPA, parties must first know their
alternatives, and their "bottom line" or “walk
away position.”
• ZOPA becomes known once parties explore
their various interests and options.
• If parties can identify their ZOPA, there is good
chance that they will come to agreement.
 ALTERNATIVES
• BATNA – Best Alternative to a
Negotiated Agreement
• MLATNA – Most Likely
Alternative to a Negotiated
Agreement
• WATNA – Worst Alternative to a
Negotiated Agreement
 ZOPA
Php.70,000.00 Php.120,000

Php.60,000.00 Php.90,000.00
 IMPASSE

A chokepoint, deadlock, a situation

where progress appears to be impossible;
where both parties do not seem to be
willing or they are UNABLE TO MOVE
THE DISCUSSION FORWARD, either
due to resistance of parties to make
workable solutions or simply exhaustion
of creativity.

36
 Consider Caucusing

A private session where the MEDIATOR

meets alone with each party at any time
during the mediation. The MEDIATOR
explores the unresolved issues and the
options available in order to find
solutions.

37
Who can call for a caucus?

38
 CLOSURE
CLOSING simply means
wrapping up the
mediation process
SETTLEMENT/CLOSURE
 PRIMARY DUTY OF A
MEDIATOR

To successfully assist parties to formally

settle, the MEDIATOR must:

HEAL BROKEN RELATIONSHIPS

 OUTCOME OF MEDIATION

SUCCESSFUL MEDIATION
• Compromise Agreement
• Withdrawal of the Complaint/Counterclaim
• Satisfaction of the claim

FAILED/UNSUCCESSFUL MEDIATION

• Party refused to undergo mediation (for whatever reason)

• Parties not fully authorized to enter into Compromise Agreement
• Non-appearance of parties in conferences
RESTATE AND CONFIRM ALL THE POINTS
OF THE AGREEMENT AND ENSURE IT IS:

• Complete in every detail; nothing is missing.

• Clear and well understood by all parties;
similarly understood by the parties and the
MEDIATOR; everybody is saying the same thing.
• Voluntarily agreed upon by each party.
• Acceptable to all.
• Mechanics for implementation are defined.
• Obligations of the parties can be complied with.
 CONFIRM WITH PARTIES THEIR
WILLINGNESS TO SETTLE THE CASE

– With parties giving their willingness to

settle the case, the MEDIATOR may again
confirm their authority* to sign the
agreement
* (this authority should have been determined at
the outset or before MEDIATION starts)

44
PARTIES MUST BE CLEARLY AWARE OF
THE CONSEQUENCES:

IN CIVIL CASES:
- Withdrawal of complaint
- Writ of execution
IN CRIMINAL CASES:
- Immediate or provisional dismissal of case
- Archiving of case pending compliance
- Revival of case upon failure to comply
- Writ of execution on the civil aspect
 EXPLAIN TO THE PARTIES ITEMS CONTAINED
IN THE AGREEMENT AS STANDARD
ADDITIONS:

• Writ of execution
• Revival of case
• Provisional dismissal
• Archiving
• Affidavit of desistance
(these may or may not have been part of the
discussion or negotiations but are still included in
the agreement)
IMPORTANT MATTERS IN MEDIATION
CLOSURE

- Congratulate parties and lawyers

- Give appreciation or compliment
- Thank them for giving
MEDIATION a chance
 FAILURE OF MEDIATION

• Acknowledge the efforts of the parties in

attending mediation.
• State the consequence of their failure to
settle.
• Remind them to attend the next court
hearing.
• Advise them that closure is temporary –
meaning – parties are not precluded from
settling later in court.
– GIVE A SINCERE SMILE and
HANDSHAKE
ADVICE TO MEDIATORS

The Four Agreements &

The Fifth Agreement
 AGREEMENT 1

Be impeccable with your word

Speak with integrity. Say only what you
mean. Avoid using the word to speak
against yourself or to gossip about
others. Use the power of your word in
the direction of truth and love.
 AGREEMENT 2

Don’t take anything personally

Nothing others do is because of you.
What others say and do is a projection
of their own reality, their own dream.
When you are immune to the opinions
and actions of others, you won’t be the
victim of needless suffering.
 AGREEMENT 3

Don’t make assumptions

Find the courage to ask questions and
to express what you really want.
Communicate with others as clearly as
you can to avoid misunderstandings,
sadness and drama. With just this one
agreement, you can completely
transform your life.
 AGREEMENT 4
Always do your best
Your best is going to change from
moment to moment; it will be different
when you are healthy as opposed to
sick. Under any circumstance, simply do
your best, and you will avoid self-
judgment, self-abuse and regret.
 AGREEMENT 5

Complete acceptance of ourselves and

of others
Completely accept ourselves just the
way we are and completely accept
everybody else just the way they are and
the reward is eternal happiness.
WRITING AGREEMENTS, REVIEW AND
IMPLEMENTATION
What is a Compromise Agreement?

A compromise is a contract
whereby the parties, by making
reciprocal concessions, avoid a
litigation or put an end to one
already commenced.
(Art. 2028, NCC)
Once accepted, a compromise
agreement is binding on the
parties provided there is no
vitiated consent. (McCarthy vs.
Barbers Steamship Lines, 44
Phil 448)
This is true even if the
provisions turn out to be
unsatisfactory to either of both
parties. (Castro v. Castro, 2
SCRA 229)
A compromise agreement comprises
only those objects which are
definitely stated therein or which
from the necessary implication from
its terms should be deemed to have
been included in the same.
A general renunciation of rights is
understood to refer only to those that
are connected with the dispute which
is the subject of the compromise.
(Art. 2036, Civil Code)
 Who persuades the
litigants to compromise?

The courts shall endeavor

to persuade the litigants in
a civil case to agree upon
some fair compromise.
(Art. 2029, NCC)
 When is a civil action
suspended?

(1) willingness to discuss a possible compromise

expressed by one or both parties; or
(2) it appears that one of the parties, before the
commencement of the action or proceeding, offered to discuss
a possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action
or proceeding and similar matters shall be governed by such
provisions of the rules of court as the Supreme Court shall
promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders.

(Art. 2030, NCC)

 What are the effects of a
Compromise Agreement?
 effect and authority of res judicata; but
 no execution except in compliance
with a judicial compromise.
(Article 2037 of the Civil Code of the Philippines)
¨ If one of the parties fails or refuses to
abide by the compromise, the other party
may either enforce the compromise or
regard it as rescinded and insist upon his
original demand.
(Art. 2041, NCC)
 Why write agreements?
• Helps the mediator and the parties to be clear about
what has been agreed to; helps to prevent confusion,
misinterpretation and further conflict.
• Written agreements are evidence that positive things
are happening.
• The higher the level of conflict the clearer and more
definitive the agreement needs to be.
• Write agreements down as you proceed through the
process.
• Once you get to the first agreement it is easier to get
to subsequent agreements.
• Can take written agreements to legal and financial
advisers to be checked.
 Who writes agreements?
In some services the parties write agreements
themselves but it is usually assumed that it is more
efficient and effective if the mediator writes the
agreements. The advantages are that mediator can:
• control the language used
• make sure that the agreement is framed in a positive,
mutual way
• order the items in a psychologically acceptable
manner
• ensure the agreement is clear and unambiguous
• insert preventative clauses, such as what will happen
in future disputes
 Disadvantages
Disadvantages to the mediator writing the
agreement:
• the parties may not own the agreement in the
same way
• the mediator may not capture the parties’
language or intent
• it may leave the mediator with too much
control over the outcomes
 What can not be
compromised?
(Art. 2035, NCC)

• Civil status of a person

• Validity of a marriage or a legal separation
• Any ground for legal separation
• Future support
• The jurisdiction of courts
• Future legitime
Other Issues Not Subject to
Compromise
Psychological Incompability:
1. Ground for nullity of marriage
2. Habeas corpus petitions
3. Cases under the VAWC Law (RA 9262)
4. Other Criminal Cases not covered by the
above
5. Cases with pending application for TRO
or injunction
 Guides to Framing of Compromise
Agreements
• 1. CONTEXT • Four ‘Ws’, One ‘H’
 What
 When
 Nature of case  Where
 Characteristics
 Processes  Who
 How
 Guides to Framing of Compromise
Agreements

• LANGUAGE

 Neutral, non-blaming language

 Simple & direct statements
 Avoid legalese
 Words to reflect tone of agreement
 Guides to Framing of Compromise
Agreements

• SPECIFICITY
 Clear & understandable standards
 Avoid vague words
DETAILS
 Necessary for compliance
 Check against “Prayer’ in complaint &
counterclaim
 Guides to Framing of Compromise
Agreements

• DEADLINES
 Who is agreeing to what deadline
 Grace period

 REALITY CHECK
 Expectation of parties
 Means or ability to comply
 Guides to Framing of Compromise
Agreements
• SATISFACTION OR EXECUTION
 Make sure who of the parties has the
burden of satisfying the obligations
 Cover the eventuality of failure to
comply by including resort to court
thru motion for execution
 QUITCLAIM
 Each party waives any further claim
arising from incident
Parts of the Compromise Agreement

1. Caption – Name of the Court, names of

the Parties,
title of the action, docket number

2. Body – terms of the agreement

3. Signatures – preferably by the parties,

assisted by their lawyers and attested by
the mediator.
CAPTION

Republic of the Philippines

Municipal Trial Court
Region 10
Valencia City, Bukdinon

Daniel Kien Gaudiel,

Plaintiff

vs. Civil Case No. ___

Richard Peñalosa, For a sum of money

Defendant
II. Body

Terms and Conditions of the Compromise Agreement

In a case for sum of money:

Principal amount due
To whom payable
How payable
When payable
Where payable
Interest stipulation, if any
Acceleration clause in case of default
Waiver of other claims, if agreed by parties
Attorneys fees, if any
SIGNATURE

Signature of parties;

Signature of attorney-in-fact, with attached authority (power of

attorney or board resolution)

Signature of assisting lawyers

Signature and attestation of the mediator

 Important reminders:
• Juridical persons may alienate only in the
form and with the requisites which may be
necessary to alienate their property. (Art.
2033, Civil Code)

• A corporation may be authorized through a

authority granted by the Board of
Directors.
 Important reminders:
• A compromise entered into by one without
authority is void. (Jacinto vs. Montesa, 19
SCRA 513)

• A contract where consent is given by

mistake, violence, intimidation, undue
influence or fraud is voidable. (Art. 1330,
Civil Code)