Sunday, March 13, 2011
Expanded coverage of mediation and judicial dispute resolution
The Supreme Court has issued A·M. No, 11-1-6-SC-PHILJA, January 11, 2011, entitled “CONSOLIDATED AND REVISED GUIDELINES TO IMPLEMENT THE EXPANDED COVERAGE OF COURTANNEXED MEDIATION (CAM) AND JUDICIAL DISPUTE RESOLUTION (JDR)”. I wish to summarize its salient points for the information of my readers.
The subject matters of the new guidelines are the Court‐Annexed Mediation (CAM) and Judicial Dispute Resolution (JDR).
The purposes of CAM and JDR is “to put an end to pending litigation through compromise agreement of the parties and thereby help solve the ever-pressing problem of court docket congestion”. It is also intended “to empower the parties to resolve their own disputes and give practical effect to the State Policy expressly stated in the ADR Act of 2004 (R.A. No. 9285)”, to wit: “to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangement to resolve disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and de-clog court dockets.”
Court diversion is a “three-stage process”. The first stage is the CAM “where the judge refers the parties to the Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators”. Upon failing to secure a settlement of the dispute during the first stage, “a second attempt is made at the JDR stage”, where the JDR judge becomes a “mediator-conciliator-early neutral evaluator in a continuing effort to secure a settlement”. Still failing that second attempt, “the mediator-judge must turn over the case to another judge (a new one by raffle or nearest/pair judge) who will try the unsettled case”. The trial judge “shall continue with the pre-trial proper and, thereafter, proceed to try and decide the case. The third stage is during the appeal where covered cases are referred to the PMC-Appeals Court Mediation (ACM) unit for mediation”.
Both the Katarungang Pambarangay Law and CAM aim “to restore the role of the judiciary as the forum of last recourse to be resorted to only after all prior earnest efforts to arrive at private accommodation and resolution of disputes have failed.”
The Court noted that Article 2034 of the Civil Code provides that: “There may be a compromise upon the civil liability arising from the offense, but such compromise shall not extinguish the public action for the imposition of the legal penalty.” The provision “does not restrict the crime mentioned to the gravity of the imposable penalty as a condition for allowing a compromise agreement to be reached on the civil liability arising from the crime”. The allowed compromise of civil liability “applies to all crimes, subject only to the policy considerations of deterrence variables arising from the celerity, certainty and severity of punishment actually imposed”.
It noted that civil cases constitute 16% of all cases filed in court while special proceedings constitute 7.6%. The rest is made up of criminal cases.
Henceforth, under the expanded coverage, the following cases shall be referred to CAM and be the subject of JDR proceedings:
“(1) All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability for violation of B.P. 22, except those which by law may not be compromised;
(2) Special proceedings for the settlement of estates;
(3) All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law
(4) The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code;
(5) The civil aspect of less grave felonies punishable by correctional penalties not exceeding 6 years imprisonment, where the offended party is a private person;
(6) The civil aspect of estafa, theft and libel;
(7) All civil cases and probate proceedings, testate and intestate, brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (1) of the Judiciary Reorganization Act of 1980;
(8) All cases of forcible entry and unlawful detainer brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par. (2) of the Judiciary Reorganization Act of 1980;
(9) All civil cases involving title to or possession of real property or an interest therein brought on appeal from the exclusive and original jurisdiction granted to the first level courts under Section 33, par.(3) of the Judiciary Reorganization Act of 1980; 13 and
(10) All habeas corpus cases decided by the first level courts in the absence of the Regional Trial Court judge, that are brought up on appeal from the special jurisdiction granted to the first level courts under Section 35 of the Judiciary Reorganization Act of 1980.”
The following cases shall not be referred to CAM and JDR:
“1. Civil cases which by law cannot be compromised (Article 2035, New Civil Code);
2. Other criminal cases not covered under paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No. 9262 (Violence against Women and Children); and
5. Cases with pending application for Restraining Orders/Preliminary Injunctions.
However, in cases covered under 1, 4 and 5 where the parties inform the court that they have agreed to undergo mediation on some aspects thereof, e.g., custody of minor children, separation of property, or support pendente lite, the court shall refer them to mediation.”
After the last pleading has been filed, the judge shall issue an order requiring the parties to forthwith appear before the concerned Philippine Mediation Center (PMC) Unit staff to start the process for the settlement of their dispute through mediation. On the same date, the court shall give to the PMC a copy of the Order for
Individual parties are required to personally appear for mediation. In the event they cannot do so, they can send their representatives who must be fully authorized to appear, negotiate and enter into a compromise, through a Special Power of Attorney.
Corporations, partnerships, or other juridical entities shall be represented by a ranking corporate officer fully authorized by a Board Resolution to offer, negotiate, accept, decide and enter into a compromise agreement, without need of further approval by or notification to the authorizing party.
The Order issued shall include a clear warning that sanctions may be imposed upon a party for failure to comply therewith, in accordance with the Section below on sanctions.
On the date set in the Order, the parties shall proceed to select a mutually acceptable mediator from among the list of accredited mediators. If no agreement is reached, the PMC Unit Staff shall, in the presence of the parties and the Mediators, choose by lot the one who will mediate the dispute from among the Mediators inside the Unit, ensuring a fair and equal distribution of cases: Provided, however, that in exceptional circumstances where special qualifications are required of the mediator, the parties shall be given an opportunity to select from the entire list of accredited mediators.
The Mediator shall be considered an officer of the court while performing his duties as such or in connection therewith.
At the initial conference, the Mediator shall explain to both parties the mediation process, stressing the benefits of an early settlement of their dispute based on serving their mutual interests, rather than the legal positions taken by them.
With the consent of both parties, the Mediator may hold separate caucuses with each party to determine their respective real interests in the dispute. Thereafter, another joint conference may be held to consider various options that may resolve the dispute through reciprocal concessions and on terms that are mutually beneficial to both the parties.
The Mediator shall not record in any manner the proceedings of the joint conferences or of the separate caucuses. No transcript or minutes of mediation proceedings shall be taken. If personal notes are taken for guidance, the notes shall be shredded and destroyed. Should such record exists, they shall not be admissible as evidence in any other proceedings.
If no settlement has been reached at the end of the period given, the case must be returned to the referring judge.
The court, upon recommendation of the Mediator, may impose sanctions upon a party who fails to appear before the Philippine Mediation Center (PMC) Unit as directed by the referring judge, or upon any person who engages in abusive conduct during mediation proceedings, as provided for in the Rules of Court as part of the Pre-Trial and other issuances of the Supreme Court, including, but not limited to censure, reprimand, contempt, requiring the absent party to reimburse the appearing party his costs, including attorney’s fees for that day up to treble such costs, payable on or before the date of the re-scheduled setting. Sanctions may also be imposed by the referring judge upon his own initiative or upon motion of the interested party.
Upon justifiable cause duly proved in the hearing called on the motion to reconsider filed by the absent party, concurred in by the concerned mediator, the sanctions imposed may be lifted or set aside in the sound discretion of the referring judge.
The Mediator shall have a period of not exceeding thirty (30) days to complete the mediation process. Such period shall be computed from the date when the parties first appeared for the initial conference as stated in the Order to appear. An extended period of another thirty (30) days may be granted by the court, upon motion filed by the Mediator, with the conformity of the parties.
The period during which the case is undergoing mediation shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary proceedings.
If full settlement of the dispute is reached, the parties, assisted by their respective counsels, shall draft the compromise agreement which shall be submitted to the court for judgment upon compromise or other appropriate action.
Where compliance is forthwith made, the parties shall instead submit a satisfaction of claims or a mutual withdrawal of the case and, thereafter, the court shall enter an order dismissing the case.
If partial settlement is reached, the parties shall, with the assistance of counsel, submit the terms thereof for the appropriate action of the court, without waiting for resolution of the unsettled part.
In relation to the unsettled part of the dispute, the court shall proceed to conduct JDR proceedings.
Unless otherwise directed by the Supreme Court, all judges who have undergone orientation in JDR procedures and completed their training in mediation, conciliation and neutral evaluation, are authorized to conduct JDR proceedings in
accordance with these guidelines for the settlement of disputes pending in their courts, after the parties failed to settle their disputes during Court Annexed Mediation at the Philippine Mediation Center Units (PMCU).
Judicial proceedings shall be divided into two stages:
(1) from the filing of a complaint to the conduct of CAM and JDR during the pre-trial stage, and
(2) pre-trial proper to trial and judgment.
The judge to whom the case has been originally raffled, who shall be called the JDR Judge, shall preside over the first stage. The judge, who shall be called the trial judge, shall preside over the second stage.
At the initial stage of the pre-trial conference, the JDR judge briefs the parties and counsels of the CAM and JDR processes. Thereafter, he issues an Order of Referral of the case to CAM and directs the parties and their counsels to proceed to the PMCU bringing with them a copy of the Order of Referral. The JDR judge shall include in said Order, or in another Order, the pre-setting of the case for JDR not earlier than forty-five (45) days from the time the parties first personally appear at the PMCU so that JDR will be conducted immediately if the parties do not settle at CAM.
All incidents or motions filed during the first stage shall be dealt with by the JDR judge. If JDR is not conducted because of the failure of the parties to appear, the JDR judge may impose the appropriate sanctions and shall continue with the proceedings of the case.
If the parties do not settle their dispute at CAM, the parties and their counsels shall appear at the preset date before the JDR judge, who will then conduct the JDR process as mediator, neutral evaluator and/or conciliator in order to actively assist and facilitate negotiations among the parties for them to settle their dispute. As mediator and conciliator, the judge facilitates the settlement discussions between the parties and tries to reconcile their differences. As a neutral evaluator, the judge assesses the relative strengths and weaknesses of each party's case and makes a non-binding and impartial evaluation of the chances of each party's success in the case.
On the basis of such neutral evaluation, the judge persuades the parties to a fair and mutually acceptable settlement of their dispute.
The JDR judge shall not preside over the trial of the case when the parties did not settle their dispute at JDR.
In multiple sala court, if the case is not resolved during JDR, it shall be raffled to another branch for the pre trial proper up to judgment.
For cases with pending applications for restraining orders/preliminary injunctions, the judge to whom the case was raffled shall rule on the said applications. During the pre-trial stage, the judge refers the case to CAM, but if the parties do not settle at CAM, the case will be raffled to another branch for JDR. If the parties do not settle at JDR, the case will be returned to the branch that ruled on the applications for the pre-trial proper and up to judgment.
In single sala court, unless otherwise agreed, the JDR proceedings will be conducted by the judge of the pair court, if any, otherwise, by the judge of the nearest court as determined by the concerned Executive Judge. The JDR proceedings shall be conducted at the station where the case was originally filed. The result of the JDR proceedings shall be referred to the court of origin for appropriate action, e.g. approval of the compromise agreement, trial, etc.
Notwithstanding the foregoing, before the commencement of the JDR proceedings, the parties may file a joint written motion requesting that the court of origin conduct the JDR proceedings and trial.
In Family Courts, unless otherwise agreed upon, the JDR proceedings in areas where only one court is designated as a family court, shall be conducted by a judge of another branch through raffle. However, if there is another family court in the same area, the family court to whom the case was originally raffled shall conduct JDR proceedings and if no settlement is reached, the other family court shall conduct the pre-trial proper and trial.
Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the family court to which the case was originally raffled shall conduct the JDR proceedings and trial.
Despite the non-mediatable nature of the principal case, like annulment of marriage, other issues such as custody of children, support, visitation, property relations and guardianship, may be referred to CAM and JDR to limit the issues for trial.
In Commercial, Intellectual Property, and Environmental Courts, unless otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated as commercial/intellectual property/environmental court, hereafter referred to as special court, shall be conducted by another judge through raffle and not by the judge of the special court. Where settlement is not reached, the judge of the special court shall be the trial judge. Any incident or motion filed before the pre-trial stage shall be dealt with by the special court that shall refer the case to CAM.
Notwithstanding the foregoing, before commencement of the JDR proceedings, the parties may file a joint written motion requesting that the special courts to which the case was originally raffled shall conduct the JDR proceedings and trial.
Cases may be referred to JDR even during the trial stage upon written motion of one or both parties indicating willingness to discuss a possible compromise. If the motion is granted, the trial shall be suspended and the case referred to JDR, which shall be conducted by another judge through raffle in multiple sala courts.
If settlement is reached during JDR, the JDR court shall take appropriate action thereon, i.e. approval/disapproval of the compromise agreement. If settlement is not reached at JDR, the case shall be returned to the referring court for continuation of trial.
In single sala courts, the JDR shall be conducted by the nearest court (or pair court, if any) regardless of the level of the latter court. The result of the JDR proceedings shall be referred to the court of origin for appropriate action, e.g. approval of the compromise agreement, trial, etc.
The parties may, by joint written motion, despite confidential information that may be divulged during JDR proceedings, file a request that their case be not transferred to other courts for JDR and that they agree to have the trial judge continue the trial should the case not be settled through JDR.
A party who fails to appear on the date set for JDR conference, may forthwith be imposed the appropriate sanction as provided in Rule 18 of the Revised Rules of Court and relevant issuances of the Supreme Court including, but not limited to censure, reprimand, contempt, and requiring the absent party to reimburse the appearing party his costs, including attorney’s fees for that day up to treble such costs, payable on or before the date of the re-scheduled setting. Sanctions may be imposed by the JDR judge upon motion of the appearing party or motu proprio.
Upon justifiable cause duly proved in the hearing of the motion to reconsider filed by the absent party, the sanctions imposed may be lifted, set aside or modified in the sound discretion of the JDR judge.
A representative who appears on behalf of an individual or corporate party without the required authorization by special power of attorney or board resolution, respectively, may similarly be imposed appropriate sanctions.
To complete the JDR process, judges of the First Level Courts shall have a period of not exceeding thirty (30) days, while judges of the Second Level Courts shall have a period of not exceeding sixty (60) days. A longer period, however, may be granted upon the discretion of the JDR judge if there is a high probability of settlement and upon joint written motion of the parties. Both periods shall be computed from the date when the parties first appeared for JDR proceedings as directed in the respective Orders issued by the judge. As far as practicable, JDR conferences shall be set not more than two (2) weeks apart so as to afford the parties ample time to negotiate meaningfully for settlement.
In criminal cases covered by CAM and JDR, where settlement on the civil aspect has been reached but the period of payment in accordance with the terms of settlement exceeds one (1) year, the case may be archived upon motion of the prosecution, with notice to the private complainant and approval by the judge.
The period during which the case undergoing JDR proceedings shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary proceedings.
In civil cases, if full settlement of the dispute is reached, the parties, assisted by their respective counsels, shall draft the compromise agreement which shall be submitted to the court for a judgment upon compromise, enforceable by execution. Where full compliance with the terms of the compromise is forthwith made, the parties, instead of submitting a compromise agreement, shall submit a satisfaction of claims or a mutual withdrawal of the parties’ respective claims and counterclaims. Thereafter, the court shall enter an order dismissing the case.
If partial settlement is reached, the parties shall, with the assistance of counsel, submit the terms thereof for the court’s approval and rendition of a judgment upon partial compromise, which may be enforced by execution without waiting for resolution of the unsettled part.
In relation to the unsettled part of the dispute, the court shall proceed to conduct trial on the merits of the case should the parties file a joint motion for him to do so, despite confidential information that may have been divulged during the conciliation/mediation stage of the proceedings. Otherwise, the JDR Judge shall turn over the case to a new judge by re-raffle in multiple sala courts or to the originating court in single sala courts, for the conduct of pre-trial proper and trial.
In criminal cases, if settlement is reached on the civil aspect of the criminal case, the parties, assisted by their respective counsels, shall draft the compromise agreement which shall be submitted to the court for appropriate action. Action on the criminal aspect of the case will be determined by the Public Prosecutor, subject to the appropriate action of the court.
If settlement is not reached by the parties on the civil aspect of the criminal case, the JDR judge shall proceed to conduct the trial on the merits of the case should the parties file a joint written motion for him to do so, despite confidential information that may have been divulged during the JDR proceedings. Otherwise, the JDR Judge shall turn over the case to a new judge by re-raffle in multiple sala courts or to the originating court in single sala courts, for the conduct of pretrial proper and trial.
Where no settlement or only a partial settlement was reached, and there being no joint written motion submitted by the parties, the JDR judge shall turn over the case to the trial judge, determined by re-raffle in multiple sala courts or to the originating court in single sala courts, as the case may be, to conduct pre-trial proper, as mandated by Rules 18 and 118 of the Rules of Court.
The trial judge to whom the case was turned over, shall expeditiously proceed to trial, after the pre-trial and, thereafter, render judgment in accordance with the established facts, evidence, and the applicable laws.
Any and all matters discussed or communications made, including requests for mediation, and documents presented during the mediation proceedings before the Philippine Mediation Center or the JDR proceedings before the trial judge, shall be privileged and confidential, and the same shall be inadmissible as evidence for any purpose in any other proceedings. However, evidence or information that is otherwise admissible does not become inadmissible solely by reason of its use in mediation or conciliation.
Further, the JDR judge shall not pass any information obtained in the course of conciliation and early neutral evaluation to the trial judge or to any other person. This prohibition shall include all court personnel or any other person present during such proceedings. All JDR conferences shall be conducted in private.
Lawyers may attend mediation proceedings in the role of adviser and consultant to their clients, dropping their combative role in the adjudicative process, and giving up their dominant role in judicial trials. They must accept a less directive role in order to allow the parties more opportunities to craft their own agreement.
In particular, they shall perform the following functions:
1. Help their clients comprehend the mediation process and its benefits and allow them to assume greater personal responsibility in making decisions for the success of mediation in resolving the dispute.
2. Discuss with their clients the following:
*The substantive issues involved in the dispute.
*Prioritization of resolution in terms of importance to client.
*Understanding the position of the other side and the underlying fears, concerns, and needs underneath that position.
*Need for more information or facts to be gathered or exchanged with the other side for informed decision making.
*Possible bargaining options but stressing the need to be open-minded about other possibilities.
*The best, worst, and most likely alternatives to a negotiated agreement.
3. Assist in preparing a compromise agreement that is not contrary to law, morals, good customs, public order, or public policy so that the same may be approved by the court, paying particular attention to issues of voluntary compliance of what have been agreed upon, or otherwise to issues of enforcement in case of breach.
4. Assist, wherever applicable, in the preparation of a manifestation of satisfaction of claims and mutual withdrawal of complaint and counterclaim as basis for the court to issue an order of dismissal.
The Mediation Fees collected and collectible, pursuant to Section 9, Rule 141, as amended, of the Rules of Court, and all income therefrom shall constitute a special fund, to be known as the SC-PHILJA-PMC Mediation Trust Fund, which shall be administered and disbursed in accordance with guidelines set by court issuances, for purposes enumerated in Section 9, Rule 141 of the Revised Rules of Court.
The Clerks of Court of the Regional Trial Courts and the First-Level Courts shall collect the amount of FIVE HUNDRED PESOS (P500.00) upon the filing of the following:
(1) Complaint or an Answer with a mediatable permissive counterclaim or cross-claim, complaint-in-intervention, third-party complaint, fourth-party complaint, etc., in civil cases, a Petition, an Opposition, and a Creditors’ Claim in Special Proceedings;
(2) Complaint/Information for offenses with maximum imposable penalty of prision correccional in its maximum period or six years imprisonment, except where the civil liability is reserved or is subject of a separate action;
(3) Complaint/Information for estafa, theft, and libel cases, except where the civil
liability is reserved or is subject of a separate action;
(4) Complaint/Information for Quasi-Offenses under Title 14 of the Revised Penal Code;
(5) Intellectual Property cases;
(6) Commercial or corporate cases; and
(7) Environmental cases
The Clerks of Court of the First Level Courts shall collect the amount of FIVE HUNDRED PESOS (P500.00) upon the filing of a Notice of Appeal with the Regional Trial Court.
The Clerks of Court of the Regional Trial Court shall collect the amount of ONE THOUSAND PESOS (P1,000.00) upon the filing of a Notice of Appeal with the Court of Appeals or the Sandiganbayan.
The Clerks of Court of the Court of Appeals and Court of Tax Appeals shall collect the amount of ONE THOUSAND PESOS (P1,000.00) upon the filing of a mediatable case, petition, special civil action, a comment/answer to the petition or action, and the appellee’s brief. The Clerk of Court of the Court of Tax Appeals shall also collect the amount of ONE THOUSAND PESOS (P1,000.00) for the appeal from the decision of a CTA Division to the CTA En Banc.
A pauper litigant shall be exempt from contributing to the Mediation Fund. Despite
such exemption, the court shall provide that the unpaid contribution to the Mediation Fund shall be considered a lien on any monetary award in a judgment favorable to the pauper litigant.
An accused-appellant shall also be exempt from contributing to the Mediation Fund.
The Fund shall be utilized for the promotion of courtannexed mediation and other relevant modes of alternative dispute resolution (ADR), training of mediators, payment of mediator’s fees, and operating expenses for technical assistance and organizations/individuals, transportation/communication expenses, photocopying, supplies and equipment, expense allowance, and miscellaneous expenses, whenever necessary, subject to auditing rules and regulations. In view thereof, the mediation fees shall not form part of the Judicial Development Fund (JDF) under P.D. No. 1949 nor of the special allowances granted to justices and judges under Republic Act No. 9227.