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 appellants 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

appellants 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.

 Judicial Dispute Resolution (JDR)

In En Banc A.M. No. 04-1-12-SC-PhilJA, August 29, 2006, Re: PhiLJA Resolution No.
06-22, re: Revised Guidelines for the Implementation of an Enhanced Pre-Trial
Proceeding under the JURIS Project, as Amended, the Philippine Supreme Court
adopted the rules of the new judicial dispute resolution (JDR) system of the
Philippines (described as an enhanced pre-trial proceeding) under its on-going JURIS
Project.

The Court has piloted the new concept in selected trial courts in the Philippines which
are called JURIS model courts.

As an explanatory note, the Court noted that despite the priority given by Rule 18 of the
Rules of Court (pre-trial), as amended, for the amicable settlement of cases, most
trial judges go through the function of exploring settlement perfunctorily for various
reasons, including fear of being disqualified if he goes into the process more
intensively.

In general, the concept is that mediatable cases are referred to Court-Annex

Mediation (CAM) for mediation under accredited mediators in the Philippine Mediation
Center (PMC) and subsequently referred to Judicial Dispute Resolution (JDR) for
further mediation by the judges if it is not resolved under CAM. If the case is still not
settled in JDR, the case is transferred to the pairing court to proceed with trial.

The judge conducting the JDR is called the JDR judge instead of pre-trial
judge because under the revised guidelines, pre-trial proper is resumed after JDR,
but this time, to be conducted by the trial judge instead of the judge who
conducted JDR.

A case may be referred to JDR even after conclusion of the pre-trial and during the
trial itself.

The JDR judge may preside over the trial proceedings upon joint request of both
parties.

A limited period is imposed for settlement of JDR cases, i.e., thirty (30) days for first
level courts and sixty (60) days for regional trial courts. These periods may be extended
upon the discretion of the JDR judge.

Where settlement on the civil aspect has been reached in criminal cases covered by
mediation 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 concurrence of the private complainant and approval by the
judge.

The civil aspect of theft, under Art. 308 of the Revised Penal Code, is now part of the
cases for referral to mediation.

The concept is that the JDR judge acts as the mediator, the conciliator, early neutral
evaluator, or a combination of any of the above.

As a mediator and conciliator, the judge facilitates the settlement discussions

between 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 his neutral evaluation, the judge persuades the parties to reconsider
their prior reluctance to settle their case amicably.

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 shall preside over the first
stage. He shall be called the JDR judge.

The concept is that the parties will be more spontaneous once they are assured that
the JDR judge will not be the one to try the case.

As such, the general rule is that the JDR Judge shall not preside over the trial of
the same case when mediation did not succeed.

In multiple sala courts, if the case is not resolved during JDR, it shall be raffled to
another branch, where the rest of the judicial proceedings up to judgment shall be held.
The judge for that stage shall be called the trial judge.

Any incidents or motions filed during the first stage shall be dealt with by the JDR judge
at his discretion.

In single sala courts, the case shall be transferred for mediation to the nearest court
(or pair court, if any), since only mediation is involved.

Whatever the result of the mediation may be, the case is always returned to the
originating court for appropriate action - either for the approval of the compromise
agreement or for trial, as the case may be.

In Family Courts, due to the special nature of a family dispute for which specialized
family courts have been designated, parties may file a joint motion requesting that the
case be tried by said special court despite the judge thereon having been the JDR
judge.

However, if there is another family court in the same JURIS site, the trial judge shall be
that of the family court which did not conduct JDR proceedings.

In Commercial Courts, the JDR shall be conducted by the pair judge of the commercial
court.

Where JDR does not succeed, the judge of the commercial court shall be the trial
judge.

Cases may be referred to JDR even during the trial stage upon joint motion of the
parties.

If the motion is granted, the JDR shall be conducted by the pairing judge in multiple
sala courts, or in single sala courts, by the nearest court (or pair court, if any).

Whatever the result of the JDR may be, the case is always returned to the
originating court for appropriate action - either for the approval of the
compromise agreement or for trial, as the case may be.
To safeguard the confidentiality of mediation proceedings, the JDR judge shall not pass
on any information obtained in the course of conciliation, early neutral evaluation, or
mediation to the trial judge or to any other person.

All JDR conferences shall be conducted in private.

The JDR judge may, however, confer in confidence with the mediator who
previously mediated the case, merely for the purpose of determining unresolved
issues.

The pilot-test shall apply to the following cases:

(1) All civil cases, settlement of estates, and cases covered by the Rule on Summary
Procedure, except those which by law may not be compromised;

(2) Cases cognizable by the Lupong Tagapamayapa and those cases that may be
referred to it by the judge under Section 408. Chapter VII of the Republic Act No. 7160,
otherwise known as the 1991 Local Government Code;

(3) The civil aspect of BP 22 cases;

(4) The civil aspect of quasi-offenses under Title 14 of the Revised Penal Code; and

(5) The civil aspect of Estafa, Libel, and Theft.

A party who fails to appear for mediation or JDR conference may be imposed the
appropriate sanctions as provided for in Rule 18 of the Rules of Court and the relevant
issuances of the Supreme Court.

A recommendation to impose sanctions shall be made to the JDR judge by the mediator
before whom the absence took place, upon the request of the present party.

If all parties are absent despite due notice, the mediator shall motu
proprio recommend the imposition of proper sanctions upon all of them, including
dismissal of the case.

Among others, the JDR judge may require the non-appearing party to reimburse the
appearing party his costs, including attorney's fees for that day, up to treble the
amount incurred payable on or before the next mediation session.

A party who appears without the required authorization may be similarly sanctioned

If settlement is reached, the parties, with assistance of their counsel, shall draft the
compromise agreement for approval of the court by judgment upon a compromise.

Where compliance with the compromise agreement is forthwith made or the claim is
otherwise settled, the parties shall instead submit a satisfaction of claims or mutual
withdrawal of the complaint and counterclaim upon which the Court shall enter an
order dismissing the case.