Monday, July 7, 2008

Court-annexed mediation

The Philippine Congress has shown interest in Court-Annexed Mediation as an alternative mode of dispute resolution.

The previous report of its research service on the matter cited the following:

1. Sec. 5, par. 5, Art. VIII, 1987 Constitution: “Sec.5. The Supreme Court shall have the following powers: x x x x (5) promulgate rules concerning the protection and enforcement of constitutional rights, x x x. Such rules shall provide a simplified and expensive procedure for the speedy disposition of cases, x x x.”

2. Sec. 2 (a), Rule 18 of the 1997 Rules of Civil Procedure: “Sec. 2. Nature and Purpose. The pre-trial is mandatory. The court shall consider: (a) the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; x x x.”

3. Supreme Court Resolution, A. M. No. 02-2-17SC, April 16, 2002, pilot-testing the efficacy of mediation for settling cases pending in the Court of Appeals as requested by the Philippine Judicial Academy (PHILJA).

4. Supreme Court Resolution, A.M. No. 01-10-5-SC-PHILJA, October 16,

2001 designating PHILJA as a component unit of the Supreme Court for court-referred, court-related mediation cases, and other forms of Alternative Dispute Resolution Mechanisms; and adopting the “Revised Guidelines for the Implementation of Mediation Proceedings”, the “Standards and Procedures for Accreditation of Mediators for Court Referred”, the “Court Related Mediation Cases”, and the “Code of Ethical Standards for Mediators”.

5. Supreme Court Resolution, A.M. No. 99-01-SC-PHILJA, October 19,

1999 pilot testing the efficacy of Mandatory Mediation/Conciliation in the pilot areas of Mandaluyong City and Valenzuela City.

6. Mediation is a process of resolving disputes with the aid of a neutral person who help parties identify issues and develop proposals to resolve their disputes. Unlike arbitration, the mediator is not empowered to decide disputes.

7. Conciliation is the process of referring a dispute to a commission of persons who are empowered to examine the facts and to submit a report containing recommendations for the settlement of the dispute: their recommendations or proposals, however, do not have the bending effect of an award or judgment, as is the case in arbitration.

8. Arbitration is the submission of a disputed matter for decision to private, unofficial persons, selected in a manner provided by law or agreement. There are two kinds, compulsory or voluntary. Compulsory exists where the consent of one of the parties is enforceable by statutory enactment (Labor Code) either in a Court of law or before a justice of peace. Voluntary where it is affected by mutual agreement of the parties by means of a rule of court or otherwise.

9. In court-annexed mediation, the parties to a pending case are directed by the court to submit their dispute to a neutral third party (the Mediator), who works with them to reach a settlement of their controversy. The Mediator acts as a facilitator for the parties to arrive at a mutually acceptable arrangement, which will be the basis for the court to render a judgment based on a compromise.

10. The trial court, after determining the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution, shall issue an Order referring the case to the Philippine Mediation Center (PMC) unit for mediation and directing the parties to proceed immediately to the PMC unit. The Order shall be personally given to the parties during the re-trial. Copy of the Order together with the copy of the complaint and answers, shall be furnished the PMC Unit within the same date.

11. The supervisor of the PMC Unit shall assist the parties select a mutually acceptable mediator from a list of duly accredited mediators and inform the parties about fees, if any, and the mode of payment. If the parties cannot agree on a mediator, then the supervisor shall assign the mediator. The trial court shall immediately be notified of the name of the mediator, and shall thereafter confirm the selection or appointment of the mediator.

12. Mediation is a purely voluntary process. The parties or party in mediation can call it off at any time when it does not seem to be working and go back to the court and pursue litigation. In noncompliance to agreements the party affected can immediately apply for execution of the judgment or order to the trial court that approved the compromise agreement.

13. At the Court of Appeals level, upon promulgation of judgment based on a compromise agreement, the CA Division Clerk of Court shall forthwith issue an entry of judgment and remand the records of the case to the court of origin for execution of judgment.

14. The mediation fee shall be a certain percentage of the filling fee, to be paid separately from the filling fee, and in accordance with the Level of Mediators and the schedules presented below, generally equivalent to 20% of filling fee Before the start of the mediation, 50% of the mediation fee shall be paid to the clerk of court. Upon settlement of the case, the balance of the mediation fee shall also be paid to the clerk of court. If no compromise is reached, the down payment is forfeited. Under Rule 141 of the 1997 Rules of Civil Procedure, an advance mediation fee of P1,000.00 is immediately paid simultaneously with the payment of the docket and filing fees and, in case of appeals, upon payment of the appeal fee.

15. The Philippine Judicial Academy (PHILJA) was created by the Supreme Court under Administrative Order No. 35-96 on March 16, 1996 and Republic Act No. 8557 (February 26, 1998).

16. In accordance with the guidelines set forth in Supreme Court en banc Resolution in Adm. Matter No. O1-10-5-SC-PHILJA, dated October 16, 2001, PHILJA was designated as the component unit for court-referred, court-related mediation cases, and other forms of Alternative Dispute Resolution; shall direct and manage the Philippine Mediation Center (PMC), initiating for this purpose the technical and management assistance of appropriate and qualified organizations or individuals, on such terms as may be stipulated in a Memorandum of Agreement between PHILJA, through its Chancellor, and such other organizations or individuals, subject to ratification by the PHILJA Board of Trustees; shall supervise and have operational control over PMC units and Mediation Chapters with respect to court-referred, court-related mediation cases through its Mediation Division, in coordination with the Office of the Court Administrator (OCA); shall determine, with the previous approval of the Supreme Court, when to conduct annual and or semi-annual settlements week or weeks, without prejudice to year-round mediation; was directed to study and recommend the use of other forms of court diversion or other modes of alternative dispute resolution, and upon its approval, to implement the same in accordance with such rules as may be promulgated by the Supreme Court.

17. The Supreme Court en banc Resolution in Adm Matter No 01-10-5-SCPHILJA, dated October 16, 2001 approved and issued the second revised guidelines on mediation. The following cases are referable to mediation: a) All civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure, except those which by law may not be compromised; b) Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law; c) The civil aspect of BP 22 cases; and d) The civil aspect of quasi offenses under Title 14 of the Revised Penal Code. (Note: At present, estafa and theft cases are now mediatable. Other civil and criminal cases, upon agreement of the parties, may also be referred to the PMC).

18. The trial court, after determining the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution, shall issue an Order referring the case to the Philippine Mediation Center (PMC) Unit for mediation and directing the parties to proceed immediately to the PMC Unit. The Order shall be personally given to the parties during the pre-trial. Copy of the Order together with a copy of the Complaint and Answer/s, shall be furnished the PMC Unit within the same date.

19. Lawyers may attend the mediation proceedings and shall cooperate with the Mediator towards the amicable settlement of the dispute.

20. Basic notes on the Mediation Proceedings:

a) The Mediator shall be considered as an officer of the court.

b) A conference before the Mediator shall first be held with both parties present. The mediator shall explain the mediation proceedings stressing the benefits of an early settlement of the dispute and shall attempt immediate settlement. If no settlement is reached at this conference, the Mediator may, with the consent of both parties, hold separate caucuses with each party to enable the Mediator to determine their respective real interests in the dispute. Thereafter, another joint conference may be held to consider various options proposed by the parties to the Mediator to resolve the disputes.

c) The Mediator shall not record the proceedings in any manner, but he may take down personal notes to guide him.

d) The Mediator shall submit to the trial court, which referred the case to mediation, a status report on the progress of the proceedings at the end of the mediation period.

e) The PMC shall not keep a file of mediation proceedings except the report of the Mediator. All other records or documents that have been submitted by the parties shall be returned to them.

f) At the end of the thirty-day period allowed by the trial court, if no settlement has been reached, the case must be returned to the trial court for further proceedings, unless the parties agree to further continue the mediation, in which case a last extension of thirty (30) days may be granted by the trial court.

The mediation proceedings and all incidents thereto shall be kept strictly confidential, unless otherwise specifically provided by law, and all admissions or statements made therein shall be inadmissible for any purpose in any proceeding.

21. Basic ethical principles applicable to all mediators:

a. A Mediator shall be candid, accurate, and fully responsible to the

trial court concerning his qualifications, availability, and all other pertinent

matters. A Mediator shall observe all administrative policies, applicable

procedural rules, and statutes. A Mediator is responsible to the judiciary

for the propriety of his activities and must observe judicial standards of

fidelity and diligence.

b. Impartiality. The Mediator shall maintain impartiality toward all

parties. Impartiality means freedom from favoritism or bias either by

appearance, word or by action, and a commitment to serve all parties as

opposed to a single party. No time may a Mediator meet with any of

the parties to discuss a case referred.

c. Competence. - A mediator shall maintain professional competence in

mediation skills, including but not limited to: staying informed of and abiding by all statutes, rules, and administrative orders relevant to the practice of mediation;

and regularly engaging in educational activities promoting professional growth.

d. Conflict of Interest. The Mediator shall refrain from participating in

the mediation of any dispute if he/she perceives that participation, as a

Mediator will be a clear conflict of interest.

e. Avoidance of Delays. A Mediator shall plan a work schedule, refrain

from accepting appointments when it becomes apparent that completion

of the mediation assignments cannot be done in a timely and

expeditious manner, and perform the mediation services in such a way

as to avoid delays.

f. Prohibition Against Solicitation or Advertising. A Mediator shall not

use, the mediation process to solicit, encourage, or otherwise incur

future professional services and financial gain from either or both

parties.

g. Prohibition Against Coercion. A Mediator shall not coerce or unfairly

influence a party into a settlement agreement and shall not make

substantive decisions for any party to a mediation process.

h. Prohibition Against Misrepresentation. A Mediator shall not

intentionally or knowingly misrepresent material facts or

circumstances in the course of conducting a mediation.

i. A Balanced Process. A Mediator shall promote a balanced

process and shall encourage the parties to conduct the

mediation deliberations in a non-adversarial manner.

j. Mutual Respect. A Mediator shall promote mutual respect

among the parties throughout the mediation process.

k. Personal Opinion. While a Mediator may point out possible outcomes

of the case, under no circumstance may a Mediator offer a personal or

professional opinion as to how the trial court, where the case has been

filed, will resolve the dispute.

l. Disclosure of Fees. Except for his/her authorized fees, the Mediator in

Court-Referred Mediation shall not accept any commission, gift or

other similar forms or remuneration from parties or their

representatives.

m. Confidentiality. The Mediator shall treat information revealed in

mediation in strict confidentiality, except for the following: (1) Information that is statutorily mandated to be reported; (2) Information that, in the judgment of the Mediator reveals a danger of serious physical harm either to a third person or to

himself/herself.

n. Role of Mediator in Settlement. The Mediator has the responsibility

to see to it that the parties consider and understand the terms of the

settlement.

o. The Mediator shall respect the relationship between mediation and

other professional disciplines including law, medicine, science, accounting,

mental health and social services and shall promote harmony and

cooperation between Mediators and other professionals.

p. Pro Bono Service. A Mediator has a professional responsibility to

provide competent service to persons seeking assistance including

those unable to pay for such services. As a means of meeting the

needs of the financially disadvantaged, a Mediator should provide

mediation services pro bono or at a reduced rate of compensation.

22. The Supreme Court in its resolution, A.M. No. 02-2-17-SC, dated April 16, 2002, approved and allowed the pilot testing of mediation proceedings in the Court of Appeals, as requested by the Philippine Judicial Academy (PHILJA). Coverage:

1) Civil cases brought on ordinary appeal with:

i. Both appeal briefs filed; or

ii. Only the appellant’s brief filed; or

iii. With no appeal briefs filed but with memoranda

Exception:

i. Criminal cases

ii. Habeas corpus petitions

iii. Cases with pending application for restraining orders/Preliminary injunctions, unless both parties consent to Mediation

iv. Civil cases brought on ordinary appeal without the

appellant’s brief or memoranda

2) Labor cases;

3) Special civil actions; and

4) Other cases, e.g., high impact economic cases.

23. The Supreme Court in en banc Resolution A.M. No. 99-01-SC-PHILJA – Re: Recommendation No. C-12, proposing, “To Pilot Test the Efficacy of Mandatory Mediation/Conciliation,” (Annex C) dated October 19, 1999, approved and issued the amended guidelines for the implementation of mediation/conciliation proceedings in the pilot areas of Mandaluyong City and Valenzuela City. Coverage:

a) Civil cases involving members of the same family within the sixth civil degree of consanguinity or affinity, except those which by law cannot be the subject of compromise, and civil disputes between residents of the same municipality or city cognizable by the Lupon Tagapamayapa in accordance with Section 408, LGC (1991);

b) Collection cases based on creditor and debtor relationships;

c) Claims for civil damages; and

d) Disputes arising out of lessor-lessee tenant relationship.


Atty. Manuel J. Laserna Jr.
Las Pinas City, Philippines

4 comments:

  1. Is CAM really effective and appropriate in the Philippine settings? I just need some ideas about it. Thank you.

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