CHAPTER 1.

- INTRODUCTION

During the term of Chief Justice Artemio Panganiban, his main concern in the acute judiciary
problem is what he calls it ACID, i.e., (1) limited Access to justice by the poor due to financial
constraint, (2) Corruption, (3) Incompetence of judges in the conduct of hearing and rendition of
judgments, and (4) Delay in the delivery of quality judgments.

To avoid this ACID, as an alternative to court litigations, came into existence of the Alternative
Dispute Resolution (ADR) system with which the disputing parties can voluntary agree to settle
their dispute without court intervention through any of the several means under the ADR
system such as under Republic Act 9285 known as ADRA of 2004 for conciliation, mediation,
arbitration, early neutral evaluation, mini-trial and any combination thereof (e.g., mediation-
arbitration). In other words, when I say without court intervention, the dispute can be settled
without even reaching the court particularly the filing of the case or action. Among the ADR
system, mediation and arbitration are the most popular.

Under the ADR system, the parties are given the freedom how to resolve their own dispute
amicably outside and without court intervention. In fact, there was a P2.5 billion case involving
Pacific Plaza Towers, Inc. built in Fort Bonifacio by Metro Pacific Corporation where it was
resolved through ADR system within a month. Another P2.5 billion case also is the Skyway
Project in Alabang which was resolved also within a month. So, you can now realize how many
years saved in contrast when those cases were coursed through judicial process.

So there are two ways which the parties can choose to resolve their dispute, i.e., through court
which is judicial process, or in the alternative is through out-of-court which we call it ADR
process. There are ADR systems which are voluntary for the disputants to undergo, and there
are also mandatory ADR system.

 ADR SYSTEMS IN THE PHILIPPINES

1. Mandatory ADR System
Mandatory ADR System such that the disputants have no choice except to have their
dispute undergo ADR System. There are three mandatory ADR Systems:
a. Katarungang Pambarangay (under Republic Act 7160 otherwise known as Local
Government Code)
Mandatory ADR system such that under Section 412 (a) LGC no complaint, action,
petition, or proceeding involving any dispute within the authority of the Lupon shall be
filed directly in court or any other government office for adjudication, unless there has
been a mediation between disputants to be conducted by the Lupon chairman or the
pangkat. And under Section 408 LGC: Subject matter of mediation under the Lupon
Tagapamayapa
The Lupon Tagapamayapa has the power to mediate parties residing in the same
city/municipality ALL disputes - except:
(1) One party is the government agency, subdivision or instrumentality
(2) One party is a public officer/employee where dispute relates to performance of his
official function
(3) Dispute involving real properties located in different cities/municipalities - unless
parties agree to submit their dispute for mediation by the proper Lupon
Tagapamayapa
(4) Dispute involving parties who reside in barangays of different cities/municipalities -
unless such barangays where parties reside adjoin each other and the parties agree
to submit their dispute for mediation by proper Lupon Tagapamayapa
(5) Crime with imposable penalty exceeding one (1) year or exceeding P5,000 fine
(6) Crime where there is no private offended party (e.g., illegal possession of
firearms/dangerous drugs)
(7) Other disputes that the President may determine
HOWEVER: There are exceptions where the action can be filed directly in court without
first undergoing mediation before the Lupon for under Section 412 (b) LGC it provides,
(a) where the accused is presently detained, (b) where the person deprived of his liberty
calling for habeas corpus, (c) when the action is coupled with provisional remedies such
as injunction, attachment, delivery of personal property or support pendent lite, and (d)
when the action would be barred by statute of limitation if the case will undergo
barangay mediation
Note: How do you enforce compromise agreement between disputants successfuly
mediated through Punong Barangay or Lupon Tagapamaya ? (BAR 2012)
If any of the disputants did not repudiate the successfully settled dispute within 10 days
from the date of execution of the settled dispute, then the settlement can be enforced
by:
(1) By filing Motion with the Punong Barangay within 6 months from the date of
execution of the settlement; or
(2) After the lapse of said 6 months, by filing action to enforce the settlement with MTC
HOWEVER: If any of the disputants repudiated the settlement within 10 days from the
execution of the settlement, then the repudiator can file a "statement" sworn before
 and with the Lupon Chairman - by reason that his consent was obtained through fraud,
intimidation, or violence, which repudiation shall render the Punong Barangay to issue a
Certificate to File Action
b. Court-annexed Mediation (this is a specie of ADR but technically, we call it Judicial
Dispute Resolution [JDR])
This is compulsory mediation such that during the pre-trial stage of the action, the court
will order the parties to undergo mediation before the PMC. This compulsory mediation
includes: (BAR 2013)
1. All civil cases including special proceeding particularly settlement of estates - except
when the Complaint filed with court is coupled with provisional remedy such as
preliminary injunction, attachment, delivery of personal property or support
pendent lite. But there are civil cases/special proceedings which by law cannot
undergo JDR as they cannot be compromised such as under Article 2035 of NCC
which provides:
a. Civil status of a person
b. Validity of a marriage or a legal separation
However, the disputants can inform the court that they agree to undergo
mediation which the court shall abide but only some aspects such as custody of
minor children, separation of property, support pendent lite
c. Future support
d. Future legitime
2. On criminal cases - particularly:
a. Civil aspect of criminal cases where the imposable penalty not exceed 6 years
imprisonment - except those victimless crimes where there is private party
victim of crime
b. Civil aspect of quasi-offenses under RPC (e.g., reckless imprudence resulting to
physical injury or damage to property)
c. Civil aspect of theft (not qualified theft), estafa (not syndicated or large scale
esafa), and libel, BP 22
Except: Violation of Republic Act 9262 (Violence Against Women and Children
[VAWC]). However, the disputants can inform the court that they agree to undergo
mediation which the court shall abide but only some aspects such as custody of
minor children, separation of property, support pendent lite
There are three stages of JDR System: (BAR 2012)
 a. First stage: The court of origin whether MTC/RTC (as the case maybe) during
pre-trial stage, order the parties to undergo mediation before the PMC to be
officiated by accredited mediators
b. Second stage: If the parties fail to settle during the first stage, the JDR Judge of
the PMC becomes the mediator-conciliator-early neutral evaluator. If this second
stage still fails, then the JDR Judge shall refer back the case to the court of origin
(MTC/RTC as the case maybe) who will now continue with the pre-trial, proceed
with the trial until Judgment
c. Third stage: When the defeated party appeals the case to RTC (from MTC) / CA
(from RTC), as the case maybe, the RTC/CA shall refer the case to PMC-ACM
(Appeals Court Mediation) for another mediation, and if still not settled, then the
appellate court shall decide the appeal
c. Arbitration for labor cases (Presidential Decree 442)
This is compulsory arbitration which is first brought before the Regional Arbitration
Board officiated by the labor arbiter, whose decision is appealable to the NLRC. The
decision of the NLRC shall be final and executory, but subject to Petition for Certiorari
under Rule 65 ROC filed with the Court of Appeals
Note: The first two mandatory ADR systems which are Katarungang Pambarangay and JDR
are mediations where the mediator does not render decision but only facilitate way to make
the parties settle their dispute. The third ADR system by the RAB is arbitration where the
labor arbiter renders a binding decision
2. Voluntary ADR System
Voluntary such that the disputants are not required to have their dispute to undergo any of
the ADR System, but they can voluntarily agree to undergo ADR System.
a. The Arbitration Law (R.A. 876; Domestic Arbitration Law)
This is a voluntary arbitration where under Section 2 of RA 876 includes any domestic
controversy (i.e., domestic controversy refers to dispute between disputants within the
Philippines [not international controversy]), including dispute on contracts - EXCEPT:
Labor actions which is under the exclusive jurisdiction of the RAB-NLRC
Note: Another exception though domestic controversy is the construction dispute
pursuant to EO 1008 Section 4 - where it is the CIAC (Construction Industry Arbitration
Commission ) has the exclusive jurisdiction thereof
b. Construction Industry Arbitration Law (E.O 1008)
This is a voluntary arbitration of dispute to be officiated by the Construction Industry
Arbitration Commission (CIAC) regarding any breach of contract regarding construction
in the Philippines whether between private disputants or when one of the parties is a
 government. When disputants agree to undergo arbitration on their construction
dispute, then the CIAC will have the original and exclusive jurisdiction, however, before
CIAC will acquire jurisdiction, the disputants must first agree to have their construction
dispute settled through arbitration by CIAC - EXCEPT: Labor cases
c. ADR System by Solicitor General
Voluntary ADR System involving between disputing National Government Agencies, but
once they agree to undergo ADR System, it will be the SolGen who will choose the best
mode of ADR to settle the dispute whether, mediation, arbitration, early neutral
evaluation
d. Alternative Dispute Resolution Act of 2004 (R.A. 9285; ADRA)
This is a general law applicable to all forms of voluntary ADR systems in the Philippines -
viz., it unifies all forms of voluntary ADR Systems (not JDR) existing in the Philippines
such as mediation, conciliation, arbitration, early neutral evaluation, mini-trial or any
combination thereof (e.g., mediation-arbitration), including the adoption of UNCITRAL
Model Law into the Philippines (United Nations Commission on International Trade Law)
pertaining to dispute that is both commercial and international in nature. ADRA repeals
some provisions of other ADR system existing in the Philippines (such RA 876 known as
Arbitration Law, EO 1008 known as Construction Industry Arbitration Law) - but only
those provision inconsistent with ADRA
CHAPTER 2. - FUNDAMENTALS OF ADR

 DEFINITION OF ADR SYSTEM (Section 3 [a] ADRA [R.A. 9285])

Any process of resolving disputes between parties other than through judicial or quasi-
judicial (e.g., NLRC) - which resolution of dispute can be by mediation, conciliation,
arbitration, early neutral evaluation, mini-trial or any combination thereof (e.g., mediation-
arbitration) presided by a neutral 3rd person (e.g., conciliator, mediator, arbitrator, etc. as
the case may be)

 MEDIATION (Section 3 [q] ADRA in relation to Article 1.6 B [6] DOJ IRR)
A form of ADR system where disputants voluntarily agree to settle their dispute through
mediation (called "mediation agreement") to be presided by the mediator chosen by the
parties - which mediation shall be conducted in accordance with the rules agreed upon by
the parties, or in absence/default of such agreement on rules, shall be in accordance with
the ADRA and DOJ IRR. The role of the mediator is not to make decision but rather to help
the parties voluntarily amicably settle their dispute (Note: Mediation is a process that is
non-merit based - unlike arbitration, med-arb, early neutral evaluation and mini-trial) - BUT:
After the mediation, the disputants have the freedom whether to settle or not, i.e., they are
not obliged to settle.
1. CONCILIATION
Mediation includes conciliation (Section 7 ADRA).
2. What makes then conciliation somehow different from mediation
First: In conciliation, the disputants voluntarily agree to settle their dispute through
conciliation to be presided by the conciliator - WHILE: In mediation, the disputants
voluntarily agree to settle their dispute through mediation to be presided by the
mediator
Second: In conciliation, the conciliator proposes how to resolve the dispute - WHILE: In
mediation, the disputants themselves propose how to resolve their dispute and the role
of the mediator is merely to facilitate the settlement of the dispute. In other words, the
conciliator plays more active role than the mediator

 ARBITRATION (Section 3 [d] ADRA; Article 1.6 A [3] DOJ IRR)

Also a form of ADR system where the parties voluntarily agree to settle their dispute
through arbitration (called "arbitration agreement" or "submission agreement, as the case
maybe") to be presided by an arbitrator chosen by the parties (or chosen in accordance with
the Rules agreed upon the parties, or in the absence thereof, in accordance with the Rules
 mandated under ADRA/DOJ IRR) whose role (i.e., arbitrator) is to make a decision based on
the merit called "arbitral award" binding upon the parties (Note: Arbitration is the only ADR
system under ADRA that a binding decision is rendered)

 MEDIATION-ARBITRATION (Med-Arb; Note: Section 3 [a] ADRA "or any combination of the
ADR System"; Section 3 [t] in relation with Section 1.6 E[2] DOJ IRR)
Also a form of ADR system where the parties agree to settle their dispute through Med-Arb.
Med-Arb is two-phased process, first is the mediation, and if mediation failed, then
arbitration follows

 EARLY NEUTRAL EVALUATION (Section 3 [n] ADRA in relation with Section 1.6 E [1] DOJ
IRR)
Also a form of ADR system where parties voluntarily agree to settle their dispute through
early neutral evaluation (also known as neutral evaluation) to be presided by a neutral
evaluator who is an expert on the subject-matter of the dispute. The neutral evaluator is
chosen by the parties (or if no such agreement, then shall be appointed in accordance with
the DOJ IRR). During the early neutral evaluation, the parties (or their lawyers if any) shall
submit the summary (in the form of Position Paper) to support their respective case alleging
therein relevant facts, issues, and laws, attaching documents and affidavit of witnesses -
afterwhich, the neutral evaluator shall issue a non-binding written evaluation/assessment
of the dispute stating the merits and demerits (strengths and weaknesses) of the respective
case of the parties and the estimated amount of damages that may be incurred by the
possible losing party if the disputants decide to undergo court litigation. As mentioned, the
neutral evaluator must be expert on the subject matter of the dispute in order for the
parties to trust his evaluation/assessment and thereby encourages amicable settlement.
1. Why it is called "early neutral evaluation"?
Because it is conducted before any of the parties may decide to file action in court, or
before any other ADR System is thought of by any of the parties (especially arbitration)

 MINI-TRIAL (Section 3 [u] ADRA in relation Article 1.6 E[3] DOJ IRR and Section 7.7 DOJ IRR):
Also a form of ADR system where parties voluntarily agree to settle their dispute through
mini-trial to be presided by panel of 2/more decision makers (with or without the
participation of a neutral 3rd person who will act as moderator {not decision maker} in the
mini-trial process - along with the panel of 2/more decision makers]). The rules to be
observed in the mini-trial depends the agreement of the disputants. In this ADR System
being so-called mini-trial being based on the merits, the disputants will submit their
 respective written Summary which shall include the facts, factual issues , legal issues, and
the applicable law and jurisprudence, and attached therewith documents/affidavit
supporting their Summary - and afterwhich, the disputants will present their respective
case (private and informal hearing), then afterwhich, the rebuttal and sur-rebuttal stage,
the decision makers will ask clarificatory questions, then afterwhich, the decision makers
shall convince the disputants to settle their dispute (but if there is a neutral 3rd person, he
shall also assist the decision makers in trying to settle the disputants) - and if settlement
fails, then the panel of decision makers will render a non-binding oral opinion (not decision)
as regards the outcome/result of the dispute (and the reason of such outcome/result) in the
event that the disputants decide to subsequently go to court. This non-binding oral opinion
by the panel of decision makers could motivate the disputants to settle. However, any of
the parties may ask the panel of decision makers to issue such non-binding written opinion.

 DISPUTES WHERE ADRA DOES NOT APPLY (Section 6 ADRA)

The following cannot be the subject-matter under ADRA:
(1) Labor dispute (which is under the jurisdiction of RAB-NLRC)
(2) Civil status of person
Note: Civil status refers to marriage status
[single/married/widow/widower/annulled/legally separated], facts of birth, death,
legitimation, adoption, naturalization, loss/recovery of citizenship, filiation, change of
name and, civil interdiction after convicted of crime by final judgment (Civil interdiction
is an accessory crime penalty consisting of deprivation of marital authority, parental
authority, guardianship, right to manage property or dispose of it inter vivos). Civil status
also includes capacity of person to marry or to enter into contract, emancipation, etc.
(3) Validity of marriage (void or voidable)
(4) Ground for legal separation
(5) Jurisdiction of court (court's jurisdiction is a matter of law and not by agreement of
parties)
(6) Future legitime
Reason: How can a party compromise his legitime when it is not yet in existent being
future?
(7) Criminal liability
Reason: Because the complainant is the State (that is why the criminal case is entitled
People of the Philippines vs. Juan Dela Cruz), and the private complainant (e.g., victim)
merely serves as witness for the State.
 Note: However, the civil aspect/liability of the criminal action can be compromised on
those allowed by law or the Supreme Court (e.g., civil aspect of criminal cases where the
imposable penalty not exceed 6 years imprisonment, civil aspect of quasi-offenses, BP
22, estafa, theft)
(8) Others that cannot be compromised under the law
Example: Article 2035 of the Civil Code regarding “future support”, hence any
settlement thereon is null and void for being against the law and also public policy

 BASIC TERMINOLOGIES UNDER ADRA

(1) ADR Provider (Section 3 [b] ADRA)
"ADR Provider" refers to a person or an institution accredited under the law to render ADR
service through mediation, conciliation, arbitration, early neutral evaluation , mini-trial or
any combination thereof (e.g., med-arb) - but without prejudice to the right of the
disputants to choose a non-accredited person/institution to preside the ADR process
"ADR Practitioner" refers to person/s who actually act as conciliator, mediator, arbitrator,
3rd neutral evaluator in early neutral evaluation, or panel of decision makers/3rd neutral
person in mini-trial
(2) Award (Section 3 [f] ADRA)
Refers to arbitral award rendered by arbitrator/s in arbitration
Note: When you see "award" under ADRA, it refers to arbitral award because only in
arbitration where there is award, and none to other modes of ADR
(3) Commercial arbitration (Section 3 [g] ADRA in relation to Section 21 ADRA and Section 1.6
C[4] DOJ IRR)
Arbitration is "commercial" if the subject matter refers to dispute arising from relationship
commercial in nature whether contractual or non-contractual (i.e., non-contractual such as
violation of intellectual property law [e.g., unlawful use of trademark]; cutthroat
competition, etc.). This dispute that is commercial in nature are the following but not
limited to:
(a) Any trade transaction for the supply of goods/services (i.e., sales), or exchange of
goods/services (i.e., barter)
(b) Distribution agreements (Note: It refers to agreement between supplier and distributor
of goods)
(c) Construction works (e.g., construction of infrastructure such as building; Note: This is
under the jurisdiction of Construction Industry Arbitration Commission [CIAC] provided
the construction is conducted in the Philippines)
(d) Commercial representation/agency (Note: Agent seeks customers on behalf of his
principal for commercial/business purposes)
(e) Factoring (Note: It refers to a financial transaction where a business sells its accounts
receivables [e.g., invoices, promissory notes, checks, etc. given by debtors] to a person
[factor] at a discounted price – and that the factor (as subrogee) will be the one now to
collect from the debtors at full amount of his debt plus damages. Factoring becomes
necessary when a business no longer has sufficient revolving cash to meet business
activities)
(f) Leasing
(g) Consulting (Note: It refers to a person [consultant] giving expert advice to a
businessman/business company in connection with business)
(h) Engineering
(i) Licensing (Note: It refers to licensing agreement where licensor gives the licensee the
right to produce and sell goods applying the brand name/trademark of the licensor [also
called “franchising”]; Jollibee franchise)
(j) Investment (Note: It refers to act of investing or committing/entrusting money/property
to another for a future income; e.g., buying stocks in the stock market; Multi-level
Marketing [MLM])
(k) Financing (Note: It refers to providing capital [money] to a person for the latter’s
business or personal use, investment, etc.; e.g., BPI to the loan borrower)
(l) Banking (Note: It refers to business conducted by a bank accepting deposits from its
depositors in exchange for interests, and then the bank lending the deposit to another or
investing it for profit)
(m) Insurance
(n) Joint venture and other forms of industrial or business cooperation (Note: It refers to
agreement where 2/more parties pooling/combining their resources for business
purposes)
(o) Carriage of goods and/or passengers by air, water or land
 International party (Section 3 [p] ADRA)
Refers to party-disputant whose place of business is outside Philippines. We have
domestic subsidiary of such international party or co-venturer with such international
party, this domestic subsidiary or co-venturer are doing business in the Philippines - but
this domestic subsidiary or co-venturer are not deemed as international party, viz., they
are domestic party.
Note: "Domestic subsidiary" is a domestic company where more than 40% of its
stocks are owned by foreign company known as parent/holding company.
 Example of subsidiary company is the Coca-cola Bottlers Philippine, Inc. whose
parent/holding company is the Coca-cola Company with main office in Delaware,
United States
"Foreign arbitrator" is an arbitrator who is not a Filipino
 Model Law (Section 3 [v] ADRA)
(Important) Refers to "Model Law" issued by UNCITRAL (United Nations Commission on
International Trade Law - where several countries have adopted including the
Philippines) which deals on international commercial arbitration
Note: UNCITRAL "Model Law" refers to ADR System called "international commercial
arbitration" - which is adopted by many countries including the Philippines in order to
harmonize different laws on international commercial arbitration of different countries -
thereby being harmonized, the conflict of laws regarding commercial arbitration of
different countries is minimized because different countries who adopted the Model Law,
there will be a unified laws and rules on commercial arbitration that is international in
nature to be observed.
Example: A commercial arbitration international in nature is conducted in the US, and
the subject matter thereof is a property located in the Philippines. Of course the
arbitration in the US will issue an arbitral award there will be a winning-party and a
losing-party. Suppose the losing-party ignores the arbitral award, how then will winning-
party execute the arbitral award considering that the property is located in the
Philippines? Because both the US and the Philippines adopted the Model Law (i.e.,
Convention States), the remedy of the winning-party is to file with the RTC in the
Philippines a Petition for the Recognition and Enforcement of a foreign arbitral award.
But suppose the property is located in Vietnam who at this point in the time did not yet
adopt the Model Law? The Vietnam court could still recognize and enforce the arbitral
award issued in the US provided the US also recognizes and enforces arbitral award
issued in Vietnam (we call this comity and reciprocity)
(4) (Important) Confidential information (Section 3 [h] ADRA)
Any information obtained through mediation/arbitration - which information was obtained
from a source who intends or who has reasonable expectation that such information not to
be disclosed
Confidential information obtained from a source - includes:
(a) Insofar as mediation and arbitration are concerned:
Any communication or information (oral/written) obtained through
mediation/arbitration - including memoranda, notes, or work products of non-party
participant who participated in the mediation/arbitration (e.g., as witness)
 (1) Non-party participant (Section 3 [z] ADRA)
Refers to persons who participated in the mediation/arbitration not as party nor
mediator/arbitrator (e.g., witness whether as source of information, resource
person such as expert witness)
(b) Insofar as mediation is concerned:
Any communication or information (oral/written) obtained through mediation,
INCLUDING statements made by any of the mediation parties for purposes of
considering, initiating or conducting mediation, for purposes of participating in the
mediation, or for purposes of continuing or reconvening mediation (i.e., to resume
mediation), or for purposes of retaining a mediator
(c) Insofar as arbitration is concerned:
Any communication or information (oral/written) such as pleadings, motions,
manifestations, witness statements, reports by any person (expert or not on the subject
of arbitration) to the arbitrator during arbitration
(5) Court (Section 3 [k] ADRA)
Refers to RTC (Note: "Court" also referred to under Article 6 of Model Law refers to RTC; So
remember whenever you see "court" under the ADRA, you refer to it as RTC)
(a) Court-annexed Mediation (CAM; Section 3 [l] ADRA)
Refers to a compulsory mediation (to be conducted by PMC) particularly during the pre-
trial stage of the action ordered by the court after it acquired jurisdiction over the
action
(b) Court-referred Mediation (Section 3 [m] ADRA)
Refers to an order of the court regarding a case filed with it to first undergo mediation
(not with PMC but under ADRA) when one of the parties prematurely filed action in
court despite prior agreement of the parties to first settle their dispute through
mediation (known as mediation agreement)
(6) Convention award (Section 3 [i] ADRA in relation to [j])
Refers to foreign arbitral award rendered by Convention State (i.e., State that is a member
of the 1958 New York Convention [e.g., the Philippines])
(a) 1958 New York Convention (Section 3 [w] ADRA)
Refers to UN Convention on the Recognition and Enforcement of Foreign Arbitral
Award (especially on the award rendered in "International Commercial Arbitration")
rendered by another country and to be recognized and enforced by host country (where
the property subject of arbitration is located; Philippine is a signatory to the 1958 New
York Convention)
 Example: The arbitral award is rendered by US (foreign country) but the property subject
of the arbitration is located in the Philippines. Here, the remedy of the winning party
when the losing party refuses to abide by the award is to file Petition with RTC in the
Philippines (as host country) for the recognition and enforcement of the foreign arbitral
award
(7) Non-convention Award (Section 3 [x] ADRA)
Refers to foreign arbitral award rendered by Non-convention State (i.e., State that is not a
member of the 1958 New York Convention [Section 3 [y] ADRA])
(8) Proceeding (Section 3 [aa])
Refers to court or quasi-judicial proceeding
Note: So remember whenever you see "proceeding" under the ADRA, you refer to it as court
or quasi-judicial proceeding
(9) Record (Section 3 [bb])
Refers to information written on tangible medium (i.e., touchable material, e.g., paper), or
in a retrievable electronic or other similar medium (i.e., not touchable but retrievable, e.g.,
data encoded on computer disc, hard disc, website, etc.; viz., retrievable soft copy)
CHAPTER 3. - MEDIATION

 MEDIATION (Section 3 [q] ADRA in relation to Article 1.6 B [6] DOJ IRR)
A form of ADR system where disputants voluntarily agree to settle their dispute through
mediation (i.e., mediation agreement) to be presided by the mediator chosen by the parties -
which mediation shall be conducted in accordance with the rules agreed upon by the parties,
or in absence/default of such agreement on rules, shall be in accordance with the ADRA and
DOJ IRR. The role of the mediator is not to make decision but rather to help the parties
voluntarily amicably settle their dispute - BUT: After the mediation, the parties have the
freedom whether to settle or not, i.e., parties are not obliged to settle
Note: Mediation is non-merit based - UNLIKE: Arbitration, med-arb, early neutral evaluation
and mini-trial where they are merit-based; but remember only in arbitration where it is not only
merit based but also there is decisional award that is binding upon the parties

 SCOPE OF MEDIATION UNDER ADRA (Section 7 ADRA)

By the voluntary agreement of the parties, mediation includes all disputes except those that
cannot be subjected to ant of the ADR modes under ADRA (whether by mediation, conciliation,
arbitration, early neutral evaluation, mini-trial or any combination) as provided under Section 6
ADRA. Mediation under ADRA does not include Court-annexed Mediation (CAM) because it is
judiciary's own dispute resolution called JDR (in contrast mediation under ADRA which is an out
of court/quasi-judicial), and CAM is also a compulsory mediation where the court orders the
parties to undergo mediation during pre-trial stage of the court a quo or during appeal
(likewise excluded from ADRA is the mandatory mediation by Lupon Tagapamayapa under the
LGC; in contrast with mediation under ADRA which is voluntary upon the parties whether they
like to settle their dispute through mediation under ADRA). Such mediation under ADRA can
either be ad hoc or institutional.
Note: Section 6 ADRA: The following cannot be subjected by any ADR modes under ADRA: [a]
labor disputes, [b] civil status of persons, [c] validity of a marriage (void or voidable), [d] legal
separation, [e] jurisdiction of courts, [f] future legitime, [g] criminal liability, and [h] those
disputes cannot be compromised under the Philippines law
(1) Ad Hoc Mediation
Ad hoc meaning for "exists only for particular purpose," refers to mediation whose existence
is co-terminus with the termination of the mediation whether successful or not. The
mediation rules to be observed depends upon the agreement of the parties
 Note: "Ad hoc" means for particular purpose only, and when that purpose is through or no
longer exists, so also the ad hoc mediation. This ad hoc mediation is exemplified by
mediation presided by a natural person
(2) Institutional Mediation
Refers to mediation that being presided by an institution, its existence continues even after
the termination of the mediation whether successful or not - AND: It continues to exist for
other future mediation between other disputing parties (e.g., the accredited Philippine
Dispute Resolution Center, Inc. [PDRCI]).
If the mediation parties voluntarily agree to settle their dispute by the institutional
mediation, then such agreement ipso jure includes that they shall observe the policies, rules
and procedures of such Institutional Mediation - however, in case of conflict as to rules and
procedures between Institutional Mediation and the ADRA provision, the latter shall prevail
(Section 16 ADRA)

 RIGHT OF MEDIATION PARTIES TO BE REPRESENTED DURING MEDIATION (Section 14

ADRA)
Mediation parties in the mediation has the right to be assisted by his counsel/representative.
If a party desire not to be represented, he shall sign a written waiver - but at any stage during
mediation, the waiving party can rescind/revoke his previous waiver so as to have now his own
representative

 PLACE/VENUE OF MEDIATION (Section 15 ADRA)

Mediation parties can agree as to where mediation will take place - however, in the absence of
such agreement, the venue shall be at the place where it is convenient and appropriate for all
the parties

 CONFIDENTIAL AND PRIVILEGE NATURE OF MEDIATION UNDER ADRA

(1) "Confidentiality/Privileged" in mediation - explained
When disputing parties personally confront each other regarding their dispute, of course
one party gives statements in support of his case and contrary to the case of the adverse
party, and so also the adverse party. When the confrontation is not successful for the
amicable settlement of their dispute, the respective statements of the disputing parties
during the confrontation can be given in evidence in the event an action is filed in
court/quasi-judicial by either of the parties. Now, this is what the mediation under ADRA
seeks to avoid by making mediation process and all information given through mediation as
"privileged" and confidential," "privileged" meaning that the mediation process including
 information, documents and statements obtained through mediation cannot be given in
evidence in court/quasi-judicial after an unsuccessful mediation - AND: Also "confidential"
such that cannot be made known to others through publication or otherwise. And so by the
privilege and confidentiality of mediation, the disputing parties are encouraged to be
candor and honest about the true facts and circumstances of the status of their respective
case, thereby a party who believes his case is weak is encouraged to admit his
accountability/obligation and encourage the other party to enter into an amicable
settlement (knowing that he has a losing case when brought to court/quasi-judicial) - which
admission made during mediation is anyway protected by ADRA as being privileged and
confidential
Note: Confidential information, its definition - read Section 3 [h] ADRA
(2) "Confidentiality" and ""Privileged nature of Information in Mediation (Section 9 ADRA)
Information obtained through mediation are subject to the following principles:
(a) Information obtained through mediation are privileged and confidential
(b) (Being confidential) The mediation parties, mediator and non-party participant (e.g.,
witness) may refuse to further disclose information that they disclosed through and
during mediation, and they can also prevent others from further disclosing such
information (Note: But an eavesdropper during mediation who has no connection with
the mediation [whether as party, representative, non-party participant, mediator or
witness] may not be prohibited from disclosing such information - however, he can be
made liable for damages to the mediation party that is prejudiced by such disclosure of
the eavesdropper [Section 10 3rd Paragraph] ADRA)
(c) (Being confidential) Information obtained through mediation cannot be subjected to
discovery (under Rules 23-29 of the Civil Procedure), and (being privileged) shall also be
inadmissible in evidence in court/quasi-judicial. However, evidence or information that
is otherwise admissible in evidence (in court/quasi-judicial) does not become
inadmissible or protected from discovery solely by reason of its USE during the
mediation (e.g., during mediation, the lender used/introduced a document entitled
"Loan Agreement" previously executed by the borrower, now, if the mediation is
unsuccessful and the lender subsequently filed action in court for collection of sum of
money, he can use such "Loan Agreement" as his evidence against the borrower)
(d) When the mediation is unsuccessful, and an action is subsequently filed in court/quasi-
judicial, the following persons that were involved in the mediation cannot be compelled
by the court/quasi-judicial to disclose or testify on information obtained through
mediation: (because such information is confidential and privileged)
(1) Mediation parties
 (2) Mediator/s
(3) Counsel/representative of parties
(4) Non-party participants (see Section 3 [z]; e.g., witness)
(5) Any person hired in connection with the mediation as secretary, stenographer, clerk
or assistant (whether or not personally and actually present during mediation
proceeding room)
(6) Other person who obtained or possessed information obtained through mediation
by reason of his profession (e.g., records custodian of the ad hoc/institutional
mediation despite not actually present during mediation)
(e) Information obtained through mediation remains privileged and confidential - even if
the mediator found to be impartial during the mediation
(f) Mediator cannot be subpoenaed (ad testficandum/ad duces tecum) by court/quasi-
judicial in order to testify regarding information through mediation. And if he is
wrongfully subpoenaed (due to request of a party) and he appeared in court/quasi-
judicial (and there he explained in court/quasi-judicial that the information is
confidential and privileged and thereby granted), then he has the right to be reimbursed
(by the party who requested the court to subpoena him) the full cost of his attorney's
fees (if he hired one) and other expenses relevant to such wrong subpoena (e.g.,
expenses on transportation and hotel)
Comments:
(a) Confidential information - its definition
Read Section 3 [h] ADRA
(b) "Privileged" nature of information obtained through/during mediation (Exemplified)
Facts: Lender lend P1M to Borrower, where the Borrower executed a promissory note
that he will pay his debt on January 1, 2016. Borrower failed on his obligation to pay
despite demand from the Lender. Lender and Borrower agreed to settle their dispute
through mediation which we call is "mediation agreement". During mediation, Lender
presented the promissory note executed by Borrower, then Borrower admitted during
mediation that he indeed executed the same and admitted his P1M debt. The mediation
was terminated unsuccessful, and so Lender subsequently filed a civil action in court
against Borrower for collection of sum of money. During the presentation of evidence in
court by Lender, Lender testified that during the mediation, Borrower ADMITTED he
indeed executed the promissory note and also admitted his P1M indebtedness.
Question: Can Borrower object against such testimony of Lender?
Answer: YES. Those statements of admissions by the Borrower are information
obtained through mediation and so therefore confidential and privileged, and hence,
inadmissible in evidence
Question: Suppose Lender presented the promissory note executed by Borrower as
documentary evidence in court - can Borrower object on such evidence as privileged
hence inadmissible in evidence considering that Lender presented the same during
mediation?
Answer: NO. Section 9 [c]: Evidence or information that is otherwise admissible does
not become inadmissible or protected from discovery solely by reason of its USE during
the mediation (and in fact such "Promissory Note" is an information obtained not
through/during mediation but in fact already existing even before the mediation).
Remember that it is the USE of the promissory note by Lender during mediation that is
not confidential and privileged. In fact under Section 3 (d) ADRA defining confidential
information, it provides "Any information obtained through mediation/arbitration -
which information was obtained from a source who intends or who has reasonable
expectation that such information not to be disclosed" - now, of course it would be
absurd for the Lender as source of the information particularly that of the "Promissory
Note" to intend or to expect that the promissory note he used/presented during
mediation would be privileged or confidential that he can no longer use/present the
same promissory note as his evidence during trial in court
Question: Suppose the lender insists that he is not yet paid but the borrower insists that
he already paid his debt - and then the borrower enticed/persuaded the lender to settle
their dispute through mediation under ADRA, and the lender agreed (we have now the
"mediation agreement"). So mediation was conducted but turned unsuccessful, and the
lender later filed an action in court against the borrower. During the presentation of
evidence by the lender in court, he testified that the borrower went to him and
persuaded him to settle their dispute through mediation. Can the borrower object on
ground that such statement of his is privileged and confidential?
Answer: YES. Remember Section 3 [h] [2]: Confidential/privileged information in
mediation includes statements made by any of the mediation parties for purposes of
considering, initiating or conducting mediation, for purposes of participating in the
mediation, or for purposes of continuing or reconvening mediation (i.e., to resume
mediation), or for purposes of retaining a mediator. In the case at bar, when the
Borrower went to the Lender, his purpose was to consider the possibility of Lender
agreeing to settle their dispute through mediation.
 Question: Suppose on January 1, the Borrower went to the Lender admitting his already
due P1M debt but asked for longer period to pay but denied by the Lender. Then on
January 2, the Borrower went back to the Lender and enticed/persuaded the Lender to
settle their dispute through mediation under ADRA, and the Lender agreed (we have
now the "mediation agreement"). So mediation was conducted but turned unsuccessful,
and the Lender later filed an action in court against the Borrower. During the
presentation of evidence by the Lender in court, he testified that on January 1 the
Borrower went to him and admitted his P1M debt. Can the Borrower object on ground
that such statement of his is privileged and confidential?
Answer: NO. Section 3 [h] [2] does not apply in favor of the Borrower. Remember that
when the Borrower went to the Lender on January 1 and there admitted his P1M debt,
the Borrower did not approach the Lender for the purpose of considering mediation

 INSTANCES WHERE INFORMATION OBTAINED THROUGH/DURING MEDIATION - ARE NOT

"PRIVILEGE" AND "CONFIDENTIAL"
(1) Waiver of confidentiality of information obtained through/during mediation (Section 10
ADRA; hence, such information admissible in evidence in court/quasi-judicial)
(a) Waived in a record (e.g., minutes of the mediation proceedings) by all mediation parties
and mediator through manifestation (either oral or in writing) during "mediation
proceeding"
Note: Remember in this particular Section 10 ADRA, the law specifies that the
proceeding is mediation. But if ADRA does not specifically provides that kind of
proceedings, you refer to it as court/quasi-judicial proceedings because Section 3 [aa]
refers to "proceedings" as court/quasi-judicial proceedings.
Note: "Record" (Section 3 [bb] ADRA): Refers to information written on tangible
medium (e.g., paper), or in a retrievable electronic or other similar medium [viz.,
retrievable soft copy such as those information contained in USB disk]
(b) Waived by the non-party participant (e.g., witness) provided - (1) such information is
sourced from him (Section 10 Par 2 ADRA) - PROVIDED: With the consent of all
mediation parties (Section 3.22 [b] DOJ IRR)
 Doctrine of Estoppel (Section 10 Par 3 and 4 ADRA)
A person (whether he be party, his representative, non-party participant or mediator)
who disclosed confidential/privileged information is estopped from invoking privilege
information under Section 9 ADRA, and he can be compelled to disclose the rest of the
information necessary for the complete understanding of the confidential information
he disclosed. But if another person is prejudiced by such disclosure and suffered
 loss/damages (e.g., mediation party), then he can file action in proper court for
damages against such person who made disclosure of confidential information
HOWEVER: A person who is prejudiced in a court/quasi-judicial proceeding (we call him
prejudiced person) prejudiced by a person (we call him prejudicing person) due to the
disclosure by the latter of confidential/privileged information relevant to mediation,
then, the prejudiced person has the right to further disclose other
privileged/confidential information obtained through mediation only to the extent
necessary for him to respond and defend himself (Note: Such prejudiced person cannot
be liable for any damages)
Note: "Person" who made disclosure of confidential information can refer to a mediation
party, mediator, counsel, non-party participant, mediation
secretary/stenographer/clerk/assistant, any person who obtains/possesses confidential
information by reason of his profession (e.g., records custodian of the Ad Hoc mediation or
institutionalized mediation), or any other person whether or not connected with the
mediation (e.g., eavesdropper, or any other person)
Question: In a court proceeding (not involving Lender and Borrower as parties), the
Mediator testified and disclosed that during the mediation he previously presided between
Lender and Borrower, the latter admitted his debt. Can the court force the Mediator to
further disclose other confidential/privileged information?
Answer: YES. Provided those further disclosure are relevant to the case and will enable the
court to fully understand about the debt of the Borrower to the Lender - such as what
amount is the debt, when the debt incurred, when it is due and other relevant disclosures
Question: Can the Borrower file damages against the Mediator?
Answer: YES. The Borrower being prejudiced by the disclosure made by the Mediator, he
can file an action for damages against the Mediator in the proper court
Question: Supposed after or during the time the Mediator disclosed those
confidential/privileged information in a certain action, there is also pending action between
Lender and the Borrower - now, can the Borrower in a case pending between him and the
Lender make further disclosure of confidential/privileged information?
Answer: YES. But only to the extent necessary for the Borrower to respond to and defend
himself against those disclosures by the Mediator
Sub-question: Will the Borrower liable to the Lender for damages?
Answer: NO. The Borrower is constrained to and has the right to defend himself against
those disclosures made by the Mediator
(2) Exceptions to privileged/confidential information obtained through/during mediation
(Section 11 ADRA; hence, such information admissible in evidence in court/quasi-judicial)
 No privilege information under Section 9 ADRA in the following (Section 11 [a] ADRA):
(1) When all the mediation parties agree contained by a record (e.g., paper, minutes of
the mediation proceedings, or tape recording) and authenticated (confirmed or
signed) by all of them - then that information obtained through mediation is not
privileged
Note: Section 10 Par 1 ADRA: Waiver of mediation confidentiality: WAIVED by all
mediation parties and mediator through oral manifestation during "proceeding"
either in oral or in "record". Now, this waiver under Section 10 Par 1 ADRA speaks
about "waiver" of mediation information, in contrast with Section 11 [a] [1] ADRA
which speaks about "exception" to confidentiality/privileged mediation information
(2) When the information obtained through/during mediation - (a) is available to the
public (e.g., public document such as notarized document since notarized document
is deemed as public document), or (b) is required by law to be open to the public, or
(c) was obtained in a mediation proceeding that is open to the public (i.e., mediation
was allowed by the parties to be conducted open to the public)
Reason: Considering that the information is a public document or that law requires
such information to be open to the public, then it is not confidential. Also considering
that the information was obtained through/during mediation was allowed by the
parties to be open to the public, then the mediation parties intended that such
information is not confidential
(3) When the information obtained through/during mediation is a statement of threat
or plan to inflict physical injury or crime of violence
Reason: Mediation information confidentiality does not countenance/tolerate crime
Example: During mediation, the Lender threatened to kill the Borrower if the latter
will not pay his debt
(4) When the confidentiality of mediation information was intentionally used (or taken
advantaged of) to plan a crime, attempt to commit a crime, or conceal an ongoing
crime/criminal activity
Reason: Mediation under ADRA does not tolerate a crime to be committed, or to
conceal an ongoing/continuing crime (e.g., rebellion)
(5) When the information obtained through/during mediation refers to prove or
disprove about the abuse, neglect, abandonment, or exploitation against a person
protected by law which the government is protecting (e.g., DSWD protecting
children)
HOWEVER: Information obtained through/during mediation is still confidential and
privileged when the court ordered a mediation to be conducted where the subject
 of such mediation is about child protection, or a government agency (e.g., DSWD)
participates in a mediation regarding child protection
(6) When sought to be proven/disproved is about the professional
misconduct/malpractice of the mediator during mediation
Reason: Mediator cannot use the confidential and privilege given under mediation to
protect his misconduct/malpractice he committed during mediation
(7) When sought to be proven/disproved is about the professional
misconduct/malpractice of the mediation party, representative/counsel of the
mediation party or non-party participant during mediation
Reason: Such persons cannot use the confidential and privilege nature of mediation
to conceal his misconduct/malpractice he committed during mediation
 No privilege information under Section 9 ADRA (Section 11 [b] ADRA)
When after hearing "in camera" by the court/quasi-judicial, the latter found/believed
that the evidence sought to be proven/disproved in said court/quasi-judicial is not
available but only available in the information obtained through/during mediation -
and there is a need for such evidence to be presented in court/quasi-judicial which
substantially outweighs the policy of confidentiality/privilege of such information -
THEN: The confidentiality/privilege of such information obtained through/during
mediation can be presented in evidence:
(1) In the court proceeding that involves crime/felony; or
(2) In the court/quasi-judicial proceeding to prove/disproved the contract which under
the law could be reformed (reformation of contract as when the true intention of the
parties is not reflected in a contract due to mistake, fraud, inequitable conduct such
as force/intimidation, or due to accident) or the contract can be avoided
(void/voidable contract)
Note: "Camera" is a Latin word meaning "in chamber". So hearing "in camera” refers to
court/quasi-judicial proceedings held privately and inside the chamber of the
judge/hearing officer excluding the public; it is the opposite of public trial where public
are allowed to observe the hearing. In relation to hearing "in camera" under Section 11
[b] ADRA, the hearing is held privately without the public for purposes of determining
whether or not the mediation information is confidential/privilege
 Privileged of mediator
Mediator cannot be compelled by court/quasi-judicial:
1. To provide information/evidence obtained through/during mediation (duces
tecum), or to testify on information/evidence obtained through/during mediation
(ad testificandum) (Section 11 [c] ADRA)
 2. To provide report, assessment, evaluation, recommendation, finding, or other
communication - relevant to mediation (duces tecum or ad testificandum) - BUT:
The mediator can be compelled to provide information (Section 12 ADRA):
(a) That the mediation was conducted, and/or that it was already terminated,
and/or that an amicable settlement was reached by the disputing parties in the
mediation - but only to that extent
(b) Those that are allowed to be disclosed under Section 13 ADRA (i.e., to disclose
facts likely to affect the impartiality of mediator, his financial or personal
interest in the outcome/result of the mediation, his present/past relationship
with any of the mediation parties/participants and his relation with those
persons that are foreseeable to be party/participant in the mediation)
 "Limited evidentiary purpose" for the use of the confidential/privileged
information/evidence/communication excepted under Section 11 [a] and [b] ADRA - in
the court/quasi-judicial (Section 11 [d] ADRA)
What can be presented in court/quasi-judicial is that only those portions of the
confidential or privileged information/evidence obtained through/during mediation -
only for the purpose necessary to prove/disproved those that are mentioned under
Section 11 [a] and [b] ADRA (viz., such information that are not necessary to
prove/disprove those that are mentioned under Section 11 [a] and [b] ADRA remains
privileged/confidential)

 QUALIFICATION AND ETHICAL CONDUCT OF MEDIATOR

(1) Qualification and competence of Mediator (Section 13 2nd and 3rd Paragraph ADRA)
A person requested by the mediation parties to be the mediator, does not need to present
his qualification as mediator - unless requested by the mediation parties
Mediator need not also possess "special qualifications" unless required by the mediation
parties (e.g., such special qualification of mediator is mentioned in their mediation
agreement)
Note: When the mediator after being appointed, turned out he does not possess the
qualification/s and/or special qualification/s required by the mediation parties - any of the
mediation parties can demand the withdrawal of the mediator
(2) Emphasis on the Impartiality of Mediator especially Conflict of Interest
(a) Before the mediator accepts his appointment as mediator:(Section 13 1st Paragraph
ADRA)
(1) Mediator shall make effort that a reasonable man would do, whether there are facts
likely to affect his impartiality - including (but not limited to) financial or personal
 interest in the outcome/result of the mediation, any past/existing relationshipwith
any of the mediation parties/participant or with those persons that are foreseeable
to become aparty/participant in the mediation
Note: Mediator cannot enter into agreement with mediation parties that the
mediator's fee is contingent(depends/conditionedupon the result of the mediation,
or upon the amount of settlement by the mediation parties)(Article 3.11 [C] DOJ IRR;
Reason: By doing so would thereby make the mediator having illicit
financial/personal interest in the mediation)
Note: Mediator or members his immediate family or his agent shall not request or
accept any gift/compensationrelevant to the mediation - other than mediator's fee
and other expenses legitimately related to mediation(Article 3.13 DOJ IRR)
Reason: Same reason immediately above
(2) Mediator shall disclose to the mediation parties as soon as practicable such
aforementioned fact/s known to him or learned by him
(b) After the mediator accepted his appointment as mediator, he learned such
aforementioned fact/s, then he shall disclosesuch fact/s to the disputing parties as soon
as practicable(Section 13 1st Paragraph ADRA)
Note: When after the appointment as mediator, it is found out that he possesses any
conflict of interest, then any of the disputing parties can demand for his withdrawal
(3) Other causes for the withdrawal of the Mediator (Articles 3.4 and 3.5 DOJ IRR)
(a) When any of the mediation parties for any reason, requests the mediator to withdraw
Reason: This is to promote disputing party autonomy/freedom to choose mediator
(b) When the mediator is unable to act as mediator(e.g., physically or mentally indisposed)
(c) Mediator does not have the qualification/s, training and experience- which though not
required by the mediation parties, nevertheless, of reasonable expectation of the
mediation parties from the mediator (which he supposed to possess as mediator; e.g.,
knowledge of the basics in mediation)
(d) When the mediator is unable to provide effective mediation service
(e) When the impartiality of the mediator is questionable
(f) The mediator conducts the mediation that violates any ethical standard (e.g., hot
temperament of mediator)
(4) Causes for the Mediator to validly Refuse to act as such (Article 3.5 DOJ IRR)
(a) When the mediation parties violating ethical standard (e.g., parties keep shouting at
each other during mediation)
(b) When in conducting mediation, the safety of any of the mediation parties is
jeopardized (e.g., one party threatened another party)
 (c) When any of the mediation parties does not act in good faith (e.g., one party keeps on
absenting in the mediation without valid reason)
(d) The mediation parties agreed to something illegal or unlawful
(e) When to continue the mediation, it would give rise to an appearance in impropriety
(f) When to continue the mediation, would cause significant harm/injury to non-
participant or to the public (e.g., one party threatened the non-party participant)
(g) When to continue the mediation, it would not be for the best interest of the mediation
parties, or of their minor children, or for the settlement of the dispute(e.g., mediation
about child custody, and during the mediation, one party agrees to surrender the
custody to another who does not possess good moral character)

 THE POWER OF MEDIATOR TO LIMIT THE SCOPE OF MEDIATION, OR THE POWER TO

MOTU PROPRIO TERMINATE THE MEDIATION (Article 3.9 DOJ IRR)
Mediator shall exert effort to ensure that the mediation parties understand the nature of
mediation including private caucus (i.e., the privacy of mediation proceeding where the public is
excluded), the issues, available options, settlement options, alternatives in case disputing
parties do not reach settlement, and freedom on how to participate as party in the mediation -
(Important) BECAUSE: The mediator must remember that in mediation, the parties are to settle
their dispute freely, voluntarily and amicably according to their own terms and conditions
(i.e., party autonomy and self-determination by the mediation parties in amicably settle their
dispute)
Now, as mentioned, the mediation parties have the right to be represented by
counsel/representative (Section 14 ADRA). If any of the mediation parties waived his right to
be represented by his representative in the mediation, and the mediator believes that such
waiving party is unable to understand the nature of mediation (or the mediation party is
unable to intelligently participate in the mediation proceedings) - THEN: The mediator must
advise (not mandatorily require) the waiving party to have his own representative, and if such
party still refused, then the mediator can either:
(1) To continue the mediation but limit the scope of the mediation according to the waiving
party's ability to understand and participate; or
(2) (Right there and then) Motu proprio terminate the mediation

 ENFORCEMENT OF THE SETTLEMENT AFTER SUCCESSFUL MEDIATION (Section 17 ADRA)

When mediation is successful, the mediation parties shall sign a document called "Mediated
Settlement Agreement", or "Settlement Agreement", or "Compromise Agreement" - or in any
other nomenclature so long as such document embodies the settlement of the dispute
In the execution of the mediated settlement agreement, there is no problem if the mediation
parties faithfully comply and execute the settlement agreement. But the problem arises when
one of the mediation parties does not abide by the settlement agreement, or that he questions
the settlement agreement. Hence, the remedy of the other party is to file Petition to Enforce
the mediation settlement agreement with the RTC to compel the non-performing party to
comply - and the rules to be observed once the Petition is filed with RTC is the Special ADR
Rules promulgated by the Supreme Court (i.e., Special Rules of Court on ADR; A.M. 07-11-08-
SC; effective 2009).
(1) In the mediated settlement agreement after successful mediation, can the mediation
parties agree that the said mediated settlement agreement shall be treated as "arbitral
award" instead as "mediated settlement agreement"?
YES. In that case, when the other mediation party does not abide to execute the mediated
settlement agreement converted to arbitral award, the remedy of the other mediation
party is to file Petition to enforce the arbitral award with RTC (not Petition to Enforce
Mediation Settlement Agreement)