DISPUTE

RECOLUTION
AND CRISIS
MANAGEMENT

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 SEGMENT I: CONFLICT

1. What is Conflict?
A conflict is an activity which takes place when conscious beings (individuals or groups) wish to carry out mutually
inconsistent acts
concerning their wants, needs or obligations. (Nicholson, M., 1992)
Conflict may also refer to a natural disagreement or struggle between people which may be physical, or between
conflicting ideas. It can
either be within one person, or they can involve several people or groups. It exists when they have incompatible goals and
one or more believe that the behavior of the other prevents them from their own goal achievement. The word “Conflict”
comes from the Latin word “conflingere” which means to come together for a battle.

2. What are Conflict Theories?

Conflict theory states that tensions and conflicts arise when resources, status, and power are unevenly distributed
between groups in
society and that these conflicts become the engine for social change. In this context, power can be understood as control of
material resources and accumulated wealth, control of politics and the institutions that make up society, and one's social
status relative to others (determined not just by class but by race, gender, sexuality, culture, and religion, among other
things). (Crossman, 2019)

Conflict theory originated in the work of Karl Marx, who focused on the causes and consequences of class conflict
between the bourgeoisie (the owners of the means of production and the capitalists) and the proletariat (the working class
and the poor). Many social theorists have built on Marx's conflict theory to bolster it, grow it, and refine it over the years.
Many others have drawn on conflict theory to develop other types of theory within the social sciences, including the following:
1. Feminist theory;
2. Critical race theory;
3. Postmodern theory and postcolonial theory;
4. Queer theory;
5. Post-structural theory, and
6. Theories of globalization and world systems.

So, while initially conflict theory described class conflicts specifically, it has lent itself over the years to studies
of how other kinds of conflicts, like those premised on race, gender, sexuality, religion, culture, and nationality,
among others, are a part of contemporary social structures, and how they affect our lives.

3. What are the Conflict Resolution Strategies?

Kenneth Thomas and Ralph Kilmann (2015) developed five
conflict
resolution strategies Thomas – Kilmann Instrument or more generally
known as TKI Conflict Strategies that people use to handle conflict,
including avoiding, defeating, compromising, accommodating, and
collaborating.
The Thomas-Kilmann Instrument is designed to measure a
person’s
behavior in conflict situations. “Conflict situations” are those in which the
concerns of two people appear to be incompatible.
In such conflict situations, an individual’s behavior can be
described along
two dimensions: (1) assertiveness, the extent to which the person
attempts to satisfy his own concerns, and (2) cooperativeness, the extent to which the person attempts to satisfy the other
person’s concerns.
The following are the five (5) Conflict Resolution Strategies:

[Link] Resolution Strategy #1: Avoiding

This is unassertive and uncooperative. The person neither pursues his own concerns nor those of the other individual.
Thus, he does not deal with the conflict. Avoiding might take the form of diplomatically sidestepping an issue,
postponing an issue until a better time, or simply withdrawing from a threatening situation.

Avoiding is when people just ignore or withdraw from the conflict. They choose this method when the discomfort of
confrontation exceeds the potential reward of resolution of the conflict. While this might seem easy to accommodate for
the facilitator, people are not really contributing anything of value to the conversation and may be withholding
worthwhile ideas. When conflict is avoided, nothing is resolved. b. Conflict Resolution Strategy #2: Competing
This is assertive and uncooperative. An individual pursues his own concerns at the other person’s expense. This is a
power-oriented mode in which you use whatever power seems appropriate to win your own position—your ability to
argue, your rank, or economic sanctions. Competing means “standing up for your rights,” defending a position which you
believe is correct, or simply trying to win. Competing is used by people who go into a conflict planning to win. Competing
might work in sports or war, but it’s rarely a good strategy for group problem solving. c. Conflict Resolution Strategy #3:
Accommodating

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 This is unassertive and cooperative—the complete opposite of competing. When accommodating, the individual
neglects his own concerns to satisfy the concerns of the other person; there is an element of self-sacrifice in this
mode. Accommodating might take the form of selfless generosity or charity, obeying another person’s order when you
would prefer not to, or yielding to another’s point of view.
Also, accommodating is a strategy where one party gives in to the wishes or demands of another. They are being
cooperative but not assertive. This may appear to be a gracious way to give in when one figures out s/he has been wrong
about an argument. It is less helpful when one party accommodates another merely to preserve harmony or to avoid
disruption. Like avoidance, it can result in unresolved issues. Too much accommodation can result in groups where the
most assertive parties commandeer the process and take control of most conversations. d. Conflict Resolution
Strategy #4: Collaborating
It is both assertive and cooperative—the complete opposite of avoiding. Collaborating involves an attempt to work with
others to find some solution that fully satisfies their concerns. It means digging into an issue to pinpoint the underlying
needs and wants of the two individuals. Collaborating between two persons might take the form of exploring a
disagreement to learn from each other’s insights or trying to find a creative solution to an interpersonal problem.

A group may learn to allow each participant to contribute with the possibility of co-creating a shared solution that
everyone can support. e. Conflict Resolution Strategy #5: Compromising
It is moderate in both assertiveness and cooperativeness. The objective is to find some expedient, mutually acceptable
solution that partially satisfies both parties. It falls intermediate between competing and accommodating.
Compromising gives up more than competing but less than accommodating. Likewise, it addresses an issue more
directly than avoiding, but does not explore it in as much depth as collaborating. In some situations, compromising
might mean splitting the difference between the two positions, exchanging concessions, or seeking a quick
middleground solution.
The concept of this is that everyone gives up a little bit of what they want, and no one gets everything they want. The
perception of the best outcome when working by compromise is that which “splits the difference.” Compromise is
perceived as being fair, even if no one is particularly happy with the outcome.

SEGMENT II: ALTERNATIVE DISPUTE

RESOLUTION (ADR) 4. What is Republic Act No. 9285?
This Act is known as the "Alternative Dispute Resolution Act
of 2004." 5. What is the policy of the State regarding Alternative Dispute
Resolution (ADR)?
It is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the
freedom of the party to
make their own arrangements to resolve their 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 declog
court dockets. As such, the State shall provide means for the use of ADR as an efficient tool and an alternative procedure
for the resolution of appropriate cases. Likewise, the State shall enlist active private sector participation in the settlement of
disputes through ADR.
[Link] RA 9285 limits the power of the Supreme Court to adopt any ADR System?
No. This Act shall be without prejudice to the adoption by the Supreme Court of any ADR system, such as mediation,
conciliation,
arbitration, or any combination thereof as a means of achieving speedy and efficient means of resolving cases pending
before all courts in the Philippines which shall be governed by such rules as the Supreme Court may approve from time to time.
(Sec. 2, RA 9285) 7. What is Alternative Dispute Resolution?
Alternative Dispute Resolution System means any process or procedure used to resolve a dispute or controversy,
other than by adjudication
of a presiding judge of a court or an officer of a government agency, as defined under RA 9285, in which a neutral third
party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral
evaluation, mini-trial, or any combination thereof. (Sec. 3, par. a, RA 9285)
8. What is Arbitration?
Arbitration means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance
with the agreement of
the parties, or rules promulgated pursuant to RA 9285, resolve a dispute by rendering an award. (Sec. 3,
par. d, RA 9285) Note: Award means any partial or final decision by an arbitrator in resolving the issue or
controversy.
9. Who is an Arbitrator?
Arbitrator means the person appointed to render an award, alone or with others, in a dispute that is the subject of
an arbitration agreement.
(Sec. 3, par. e, RA 9285)
10. What is Early Neutral
Evaluation?
This means an ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to
present summaries of their
cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance
of the dispute. (Sec. 3, par. n, RA 9285)
11. What is Mediation?
Mediation means a voluntary process in which a mediator, selected by the disputing parties, facilitates
communication and negotiation, and
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 assist the parties in reaching a voluntary agreement regarding a dispute. (Sec. 3,
par. q, RA 9285) 12. Who is a Mediator?
Mediator means a person who conducts mediation. (Sec. 3, par. r, RA 9285)
13. What is Mediation Party?
This means a person who participates in a mediation and whose consent is necessary to resolve the dispute. (Sec.
3, par. s, RA 9285) 14. What is Mediation-Arbitration?
"Mediation-Arbitration" or Med-Arb is a step dispute resolution process involving both mediation and arbitration. (Sec.
3, par. t, RA 9285) 15. What is Mini-trial?
This means a structured dispute resolution method in which the merits of a case are argued before a panel
comprising senior decision
makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement
(Sec. 3, par. u, RA 9285) 16. How arbitration, mediation and conciliation are different from each other?
Arbitration, mediation and conciliation are the main Alternative Dispute Resolution Mechanism which is generally
adopted by the people to
resolve their disputes in an informal manner. They try to reach a solution by settlement or negotiation with the assistance of
a third neutral party and have turned out to be an effective alternative to the litigation process.
Arbitration is a process where the parties submit their case to a neutral third party who on the basis of discussion
determine the dispute and
comes to a solution.
Mediation and conciliation both are an informal process. Whereas, arbitration is more formal as compared to them.
In mediation, the
mediator generally sets out alternatives for the parties to reach out an agreement. The main advantage of the mediation is
that the settlement is made by the parties themselves rather than a third party. It is not legally binding on the parties. In
addition, the basic motive of mediation is to provide opportunities to parties to negotiate and come to a final solution catering
the needs of both sides.
Dispute resolution through conciliation involves the assistance of a neutral third party who plays an advisory role in
reaching an agreement. The process adopted by all the three are different but, the main purpose is to resolve the dispute in
a way where the interest of the parties is balanced.
17. What is ADR Provider?
"ADR Provider" means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or
any person exercising
similar functions in any Alternative Dispute Resolution system. This is without prejudice to the rights of the parties to
choose nonaccredited individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute. (Sec. 3, par. b,
RA 9285) 18. What is the liability of ADR providers/Practitioners?
The ADR provides /practitioners shall have the same civil liability for acts done in the performance of their official
duties as that of public
officers as provided in Section 38 (1), Chapter 9, Book 1 of the Administrative Code of 1987, upon a clear showing of bad
faith, malice or gross negligence. (Article 1.5, IRR, RA 9285)

19. What are the cases wherein Republic Act No. 9285 does not apply?
The provisions of RA 92856 shall not apply to resolution or settlement of the following:
a. Labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of the Philippines, as
amended and its
Implementing Rules and Regulations;
b. The civil status of persons;
c. The validity of a marriage;
d. Any ground for legal separation;
e. The jurisdiction of courts;
f. Future legitime;
g. Criminal liability;
h. Those which by law cannot be compromised; and
i. Those disputes referred to court-annexed mediation. (Article 1.3, IRR, RA 9285)

SEGMENT III: THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION

20. What is the Office for Alternative Dispute Resolution?
The Office for Alternative Dispute Resolution (OADR) is as an agency attached to the Department of Justice. It shall
have a Secretariat and
shall be headed by an Executive Director, who shall be appointed by the President of the Philippines, taking into
consideration the recommendation of the Secretary of Justice. (Article 2.1., IRR, RA 9285)
21. What are the powers of the OADR?
The OADR shall have the following powers:
a. To act as appointing authority of mediators and arbitrators when the parties agree in writing that it shall be
empowered to do so;
b. To conduct seminars, symposia, conferences and other public fora and publish proceedings of said activities and
relevant materials/information that would promote, develop and expand the use of ADR;
c. To establish an ADR library or resource center where ADR laws, rules and regulation, jurisprudence, books, articles
and other information about ADR in the Philippines and elsewhere may be stored and accessed;
d. To establish training programs for ADR providers/practitioners, both in the public and private sectors; and to
undertake periodic andcontinuing training programs for arbitration and mediation and charge fees on participants.

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 It may do so in conjunction with or in cooperation with the IBP, private ADR organizations, and local and foreign
government offices and agencies and international organizations;
e. To certify those who have successfully completed the regular professional training programs provided by the OADR;
f. To charge for services rendered such as, among others, for training and certifications of ADR providers;
g. To accept donations, grants and other assistance from local and foreign sources; and
h. To exercise such other powers as may be necessary and proper to carry into effect the provisions of the ADR Act.
(Art. 2.2., IRR, RA 9285)
22. What are the functions of OADR?
The OADR shall have the following functions:
a. To promote, develop and expand the use of ADR in the private and public sectors through information, education
and communication;
b. To monitor, study and evaluate the use of ADR by the private and public sectors for purposes of, among others,
policy formulation;
c. To recommend to Congress needful statutory changes to develop, strengthen and improve ADR practices in
accordance with international professional standards;
d. To make studies on and provide linkages for the development, implementation, monitoring and evaluation of
government and private ADR programs and secure information about their respective administrative
rules/procedures, problems encountered and how they were resolved;
e. To compile and publish a list or roster of ADR providers/practitioners, who have undergone training by the OADR,
or by such training providers/institutions recognized or certified by the OADR as performing functions in any ADR
system. The list or roster shall include the addresses, contact numbers, e-mail addresses, ADR service/s rendered
(e.g. arbitration, mediation) and experience in ADR of the ADR providers/practitioners;
f. To compile a list or roster of foreign or international ADR providers/practitioners. The list or roster shall include the
addresses, contact numbers, e-mail addresses, ADR service/s rendered (e.g. arbitration, mediation) and experience
in ADR of the ADR providers/practitioners; and
g. To perform such other functions as may be assigned to it. (Art. 2.3., IRR, RA 9285)
23. State the Divisions of OADR.
The OADR shall have the following staff and service divisions, among others:
a. Secretariat – shall provide necessary support and discharge such other functions and duties as may be directed by
the Executive Director.
b. Public information and Promotion Division – shall be charged with the dissemination of information, the promotion
of the importance and public acceptance of mediation, conciliation, arbitration or any combination thereof and other
ADR forms as a means of achieving speedy and efficient means of resolving all disputes and to help in the
promotion, development and expansion of the use of ADR.
c. Training Division – shall be charged with the formulation of effective standards for the training of ADR practitioners;
conduct of training inaccordance with such standards; issuance of certifications of training to ADR practitioners and
ADR service providers who have undergone the professional training provided by the OADR; and the coordination
of the development, implementation, monitoring and evaluation of government and private sector ADR programs.
d. Records and Library Division – shall be charged with the establishment and maintenance of a central repository of
ADR laws, rules and regulations, jurisprudence, books, articles, and other information about ADR in the Philippines
and elsewhere. (Art. 2.4., IRR, RA 9285)
24. What is Advisory Council? State its composition.
There is also created an Advisory Council composed of a representative from each
of the following: a. Mediation profession;
b. Arbitration profession;
c. ADR organizations;
d. IBP; and
e. Academe.
The members of the Council, who shall be appointed by the Secretary of Justice upon the recommendation of the OADR
Executive Director, shall choose a Chairman from among themselves. (Art. 2.5., IRR, RA 9285)

25. What is the role of the Advisory Council?

The Advisory Council shall advise the Executive Director on policy, operational and other relevant matters. The
Council shall meet regularly,
at least once every two (2) months, or upon call by the Executive Director. (Art. 2.6., IRR, RA 9285)

SEGMENT IV: MEDIATION

26. What are the Terms Applicable to the Segment/Discussion on International Commercial Arbitration? Explain. Terms and
Applicable to the Chapter Mediation
1. Ad hoc Mediation means any mediation other than institutional or court-annexed.
2. Institutional Mediation means any mediation process conducted under the rules of a mediation institution.
3. Court-Annexed Mediation means mediation process conducted under the auspices of the court and in accordance with
Supreme Court approvedguidelines, after such court has acquired jurisdiction of the dispute.
4. Court-Referred Mediation means mediation ordered by a court to be conducted in accordance with the agreement of the
parties when an action isprematurely commenced in violation of such agreement.
5. Certified Mediator means a mediator certified by the Office for ADR as having successfully completed its regular
professional training program.
6. Mediation means a voluntary process in which a mediator, selected by the disputing party voluntary agreement regarding
a dispute.
7. Mediation Party means a person who participates in a mediation and whose consent is necessary to resolve the dispute.
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 8. Mediator means a person who conducts mediation.
9. Non-Party Participant means a person, other than a party or mediator, who participates in a mediation proceeding as a
witness, resource person orexpert. (Rule 2, par. B, IRR, RA 9285)
27. What is the scope of application of the Implementing Rules?
These Rules apply to voluntary mediation, whether ad hoc or institutional, other than court-annexed mediation and
only in default of an
agreement of the parties on the applicable rules.
These Rules shall also apply to all cases pending before an administrative or quasi-judicial agency that are
subsequently agreed upon by
the parties to be referred to mediation. (Article 3.1., IRR, RA 9285)
28. Define Ad hoc, Institutional and Court-Annexed Mediation.
1. Ad hoc Mediation means any mediation other than institutional or court-annexed.
2. Institutional Mediation means any mediation process conducted under the rules of a mediation institution.
3. Court-Annexed Mediation means mediation process conducted under the auspices of the court and in accordance with
Supreme Court approvedguidelines, after such court has acquired jurisdiction of the dispute.
29. What is the State policy on Mediation?
In applying and construing the provisions of these Rules, consideration must be given to the need to promote candor
of parties and
mediators through confidentiality of the mediation process, the policy of fostering prompt, economical and amicable
resolution of disputes in accordance with principles of integrity of determination by the parties and the policy that the decision-
making authority in the mediation process rests with the parties.
A party may petition a court before which an action is prematurely brought in a matter which is the subject of a
mediation agreement, if at
least one party so requests, not later than the pre-trial conference or upon the request of both parties thereafter, to refer the
parties to mediation in accordance with the agreement of the parties. (Article 3.2., IRR, RA 9285)
❖ SELECTION OF A MEDIATOR
30. Do parties have the right to select a Mediator?
Yes. The parties have the freedom to select a mediator. The parties may request the Office for Alternative Dispute
Resolution (OADR) to
provide them list or roster or the resumes of its certified mediators. The OADR may be requested to inform the mediator of
his/her selection. (Article 3.3., IRR, RA 9285)
31. Is it required that a Mediator has special qualifications by background or profession?
As a Rule, ADR act does not require that a mediator shall have special qualifications by background or profession
unless the special
qualifications of a mediator are required in the mediation agreement or by the mediation parties.
(Sec. 13, RA 9285) 32. May a party waive his right to participate in Mediation?
Yes, except as otherwise provided in RA 9285, a party may designate a lawyer or any other person to provide
assistance in the mediation.
A lawyer of this right shall be made in writing by the party waiving it. A waiver of participation or legal representation may be
rescinded any time. (Sec. 14, RA 9285)
Note: Rescind means to revoke or cancel.
33. When a Mediator be replaced?
If the mediator selected is unable to act as such for any reason, the parties may, upon being informed of such fact,
select another mediator. (Article 3.4., IRR, RA 9285)
34. What are the grounds wherein a Mediator may refuse or withdraw such?
A mediator may refuse from acting as such, withdraw or may be compelled to withdraw from mediator proceedings
under the following
circumstances:
a. If any of the parties so requests the mediator to withdraw;
b. The mediator does not have the qualifications, training and experience to enable him/her to meet the reasonable
expectations of the parties; c. Where the mediator's impartially is in question;
d. If continuation of the process would violate any ethical standards;
e. If the safety of any of the parties would be jeopardized;
f. If the mediator is unable to provide effective services;
g. In case of conflict of interest; and
h. In any of the following instances, if the mediator is satisfied that:
1. One or more of the parties is/are not acting in good faith;
2. The parties' agreement would be illegal or involve the commission of a crime;
3. Continuing the dispute resolution would give rise to an appearance of impropriety;
4. Continuing with the process would cause significant harm to a non-participating person or to the public; or
5. Continuing discussion would not be in the best interest of the parties, their minor children or the dispute resolution
process. (Article 3.5., IRR, RA 9285)
❖ ETHICAL CONDUCT OF A MEDIATOR
35. Explain the following terms as Ethical Conduct of a Mediator:
1. Competence
It is not required that a mediator shall have special qualifications by background or profession unless the
special qualifications of a
mediator shall:
a. maintain the continually upgrade his/her professional competence in mediation skills;

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 b. ensure that his/her qualifications, training and experience are known to and accepted by the parties; and
c. serve only when his/her qualifications, training and experience enable him/her to meet the reasonable
expectations of the parties and shall not hold himself/herself out or give the impression that he/she does
not have.

Upon the request of a mediation party, an individual who is requested to serve as mediator shall disclose
his/her qualifications to
mediate a dispute. (Article 3.5., IRR, RA
9285) 2. Impartially
A mediator shall maintain impartiality.
a. Before accepting a mediation, an individual who is requested to serve as a mediator shall:

• make an inquiry that is reasonable under the circumstances to determine whether there are known
facts that a reasonable individual would consider likely to affect the impartiality of the mediator,
including a financial or personal interest in the outcome of the mediation and any existing or past
relationship with a party of foreseeable participant in the mediation; and
• disclose to the mediation parties any such fact known or learned as soon as practical before
accepting a mediation.
b. If a mediator learns any fact described in paragraph (a) of this Article after accepting a mediation, the mediator shall
disclose it as soon as practicable to the mediation parties. (Article 3.7., IRR, RA 9285)
3. Confidentiality
A mediator shall keep in utmost confidence all confidential information obtained in the course of the
mediation process.
a. A mediator shall discuss issues of confidentiality and the extent of confidentiality provided in any private sessions or
caucuses that the mediator holds with a party. (Article 3.8., IRR, RA 9285)
4. Consent and Self-Determination
a. A mediator shall make reasonable efforts to ensure that each party understands the nature and character of the
mediation proceeding including private caucuses, the issues, the available options, the alternatives to non-settlement,
and that each party is free and able to make whatever choices he/she desires regarding participation in mediation
generally and regarding specific settlement options.
If a mediator believes that a party, who is not represented by counsel, is unable to understand, or
fully participate, the mediation proceedings for any reason, a mediator may either:
limit the scope of the mediation proceedings in a manner consistent with the party's ability to
participate, and/or recommend that the party obtain appropriate assistance in order to continue with
the process; or terminate the mediation proceedings.
b. A mediator shall recognize and put in mind that the primary responsibility of resolving a dispute and the shaping of a
voluntary and uncoerced settlement rests with the parties. (Article 3.9., IRR, RA 9285)
5. Separation of Mediation from Counseling and Legal Advice
[Link] in evaluative mediation or when the parties so request, a mediator shall:
• refrain from giving legal or technical advice and otherwise engaging in counseling or advocacy;
and
• abstain from expressing his/her personal opinion on the rights and duties of the parties and the
merits of any proposal made.
[Link] appropriate and where either or both parties are not represented by counsel, a mediator shall;
• recommend that the parties seek outside professional advice to help them make informed decision
and to understand the implication of any proposal; and
• suggest that the parties seek independent legal and/or technical advice before a settlement
agreement is signed.
c. without the consent of al parties, and for a reasonable time under the particular circumstance, a mediator who also
practices another profession shall not establish a professional relationship in that other profession with one of the
parties, or any person or entity, in a substantially and factually related matter. (Article 3.10., IRR, RA 9285)
6. Charging of Fees.
With respect to charging of fees:
a. A mediator shall fully disclose and explain to the parties the basis of cost, fees and charges.
b. The mediator who withdraws from the mediation shall return to the parties any unearned fee and unused deposit.
c. A mediator shall not enter into a fee agreement, which is contingent upon the results of the mediation or the amount
of the settlement. (Article 3.11., IRR, RA 9285)
7. Promotion of Respect and Control of Abuse of Process.
The mediator shall encourage mutual respect between the parties, and shall take reasonable steps, subject
to the principle of selfdetermination, to limit abuses of the mediation process. (Article 3.12., IRR, RA 9285)
8. Solicitation or Acceptance of any Gift.
No mediator or any member of a mediator’s immediate family or his/her agent shall request, solicit, receive
or accept any gift or any type of compensation other than the agreed fee and expenses in connection with any
matter coming before the mediator. (Article
3.13., IRR, RA 9285)

❖ ROLE OF PARTIES AND THEIR COUNSELS IN MEDIATION

36. May a party designate a lawyer to assist him in Mediation?

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 Yes, except as otherwise provided by the ADR Act or by there Rules, a party may designate a lawyer or any other
person to provide
assistance in the mediation. A waiver of this right shall be made in writing by the party waiving it. A waiver of participation or
legal representation may be rescinded at any time. (Article 3.14., IRR, RA 9285)
37. Enumerate the Roles of a Counsel in Mediation proceedings.
a. The lawyer shall view his/her role in the mediation as a collaborator with the other lawyer in working together toward
the common goal of helping their clients resolve their differences to their mutual advantage.
b. The lawyer shall encourage and assist his/her client to actively participate in positive discussions and cooperate in
crafting an agreement to resolve their dispute.
c. The lawyer must assist his/her client to comprehend and appreciate the mediation process and its benefits, as well
as the client’s greater personal responsibility for the success of mediation in resolving the dispute.
d. In preparing for participation in mediation, the lawyer shall confer and discuss with his/her client the following:
• The mediation process as essentially a negotiation between the parties assisted by their respective
lawyers, and facilitated by a mediator, stressing it its difference from litigation, its advantages and
benefits, the clients heightened role in mediation and responsibility for its success and explaining the
role of the lawyer in mediation proceedings,
• The substance of the upcoming mediation such as; o The substantive issues involved in the dispute
and their prioritization in terms of importance to his/her client’s real interests and needs.
o The study of other party’s position in relation to the issues with a view to understanding the underlying
interests, fears,concerns and needs;
o The information or facts to be gathered or sought from the other side or to be exchanged that are
necessary for informeddecision-making;
o The possible options for settlement but stressing the need to be open-minded about other possibilities;
ando The best, worst and most likely alternative to a non-negotiated settlement. (Article 3.15., IRR, RA
9285)
38. What other matters a Counsel must do to assist in the Mediation?
To assist in the Mediation, the lawyer:
a. shall give support to the mediator so that his/her client will fully understand the rules and processes of mediation;
b. shall impress upon his/her client the importance of speaking for himself/herself and taking responsibility for
making decisions during the negotiations within the mediation process.;
c. may ask for a recess in order to give advice or suggestions to his/her client in private, if he/she perceives that
his/her client is unable to bargain effectively; and
d. shall assist his/her client and the mediator put in writing the terms of the settlement agreement that the parties
have entered into. That lawyers shall see to it that the terms of the settlement agreement are not contrary to law,
morals, good customs, public order or public policy. (Article 3.16., IRR, RA 9285)
❖ CONDUCT OF MEDIATION
39. What are the articles to be considered in the conduct of
Mediation? The articles to be considered in the conduct of
Mediation are the following:
a. The mediator shall not make untruthful or exaggerated claims about the dispute resolution process, its costs and
benefits, its outcome or the mediator’s qualifications and abilities during the entire mediation process.
b. The mediator shall held the parties reach a satisfactory resolution to their dispute but has no authority to impose a
settlement on the parties.
c. The parties shall personally appear for mediation and may be assisted by a lawyer. A party maybe represented by
an agent who must have full authority to negotiate and settle the dispute.
d. The mediation process shall, in general, consists of the following stages:
• opening statement of the mediator
• individual narration by the parties;
• exchange by the parties;
• summary of issues;
• generation and evaluation of options; and
• closure

e. The mediation proceeding shall be held in private. Person, other than the parties, their representatives and mediator,
may attend only withthe consent of all the parties,

[Link] mediation shall be closed:

• by the execution of a settlement agreement by the parties;
• by the withdrawal of any party from mediation; and
• by the written declaration of the mediator that any further effort at mediation would not be
helpful. (Article 3.17., IRR, RA 9285) 40. Where is the place of Mediation?
The parties are free to agree on the place of mediation. Failing such agreement, the place of mediation shall be any
place convenient and
appropriate to all parties. (Article 3.18., IRR, RA 9285)
❖ EFFECT OF AGREEMENT TO SUBMIT A DISPUTE TO MEDIATION UNDER INSTITUTIONAL RULES
41. What does an agreement to submit a dispute to mediator by an institution include?
An agreement to submit a dispute to mediation by an institution shall include an agreement to be bound by the
internal mediation and

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 administrative policies of such institution. Further, an agreement to submit a dispute to mediation under institutional mediation
rules shall be deemed to include an agreement to have such rules govern the mediation of the dispute and for the mediator,
the parties, their respective counsels and nonparty participants to abide by such rules. (Article 3.19., IRR, RA 9285)

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❖ ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT
42. What are the operative principles to guide Mediation?
The mediation shall be guided by the following operative principles:
a. A settlement agreement following successful mediation shall be prepared by the parties with the assistance of their
respective counsels. If any, and by the mediator. The parties and their respective counsels shall endeavor to make
the terms and condition of the settlement agreement complete and to make adequate provision for the contingency
of breach to avoid conflicting interpretations of the agreement.
b. The parties and their respective counsels, if any, shall sign the settlement agreement. The mediator shall certify that
he/she explained the contents of the settlement agreement to the parties in a language known to them.
c. If the parties agree, the settlement agreement may be jointly deposited by the parties or deposited by one party with
prior notice to theother party/ties with the Clerk of Court of the Regional Trial Court (a) where the principal place of
business in the Philippines of any of the parties is located; (b) if any of the parties is an individual, where any of
those individuals resides; or (c) in the National Capital Judicial Region. Where there is a need to enforce the
settlement agreement, a petition may be filed by any of the parties with the same court in which case, the court shall
proceed summarily to hear the petition, in accordance with the Special ADR Rules.
d. The parties may agree in the settlement agreement that the mediator shall become a sole arbitrator for the dispute
and shall treat the settlement agreement as an arbitral award which shall be subject to enforcement under Republic
Act No. 876, otherwise know as "The Arbitration Law", notwithstanding the provisions of Executive Order No. 1008,
s. 1985, other wise known as the "Construction Industry
Arbitration Law" for mediated disputes outside the Construction Industry Arbitration Commission. (Article 3.20., IRR,
RA 9285)
❖ CONFIDENTIALITY OF INFORMATION
43. What are the principles and guidelines on the information obtained through Mediation?
Information obtained through mediation proceedings shall be subject to the following principles and guidelines:
a. Information obtained through mediation shall be privileged and confidential.
b. A party, mediator, or non-party participant may refuse to disclose and may prevent any other person from disclosing
a confidential information.
c. Confidential information shall not be subject to discovery and shall be inadmissible in any adversarial proceeding,
whether judicial or quasijudicial. However, evidence or information that is otherwise admissible or subject to
discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation.
d. In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be
compelled to disclosed confidential information obtained during the mediation:
• the parties to the dispute;
• the mediator or mediators;
• the counsel for the parties;
• the non-party participants
• any person hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant;
and any other person who obtains or possesses confidential information by reason of his/her profession.
e. The protections of the ADR Act shall continue to apply even if a mediator is found to have failed to act impartially.
f. A mediator may not be called to testify to provide confidential information gathered in mediation. A mediator who is
wrongfully subpoenaed shall be reimbursed the full cost of his/her attorney’s fees and related expenses. (Article
3.21., IRR, RA 9285)
44. May the privilege of confidentiality of information be waived?
Yes, under the following circumstances, a privilege of confidentiality of information is deemed waived:
a. A privilege arising from the confidentiality of information may be waived in a record or orally during a proceeding by
the mediator and the mediation parties.
b. With the consent of the mediation parties, a privilege arising from the confidentiality of information may likewise be
waived by a non-party participant if the information is provided by such non-party participant.
c. A person who discloses confidential information shall be precluded from asserting the privilege under Article 3.21
(Confidentiality of Information) to bar disclosure of the rest of the information necessary to a complete understanding
of the previously disclosed information. If a person suffers loss or damage as a result of the disclosure of the
confidential information, he/she shall be entitled to damages in a judicial proceeding against the person who made
the disclosure.
d. A person who discloses or makes a representation about a mediation is precluded from asserting the privilege
mentioned in Article 3.21 to the extent that the communication prejudices another person in the proceeding and it
is necessary for the person prejudiced to respond to the representation or disclosure. (Article 3.22., IRR, RA 9285)
45. What are the exceptions to the privilege of confidentiality of information?
a. There is no privilege against disclosure under Article 3.21 in the following instances:
• in an agreement evidenced by a record authenticated by all parties to the agreement;
• available to the public or made during a session of a mediation which is open, or is required by law to be open,
to the public;
• a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
• intentionally used to plan a crime, attempt to commit, or commit a crime, or conceal an ongoing crime or criminal
activity.
• sought or offered to prove or disprove abuse, neglect, abandonment or exploitation in a proceeding in which a
public agency is protecting the interest of an individual protected by law; but this exception does not apply where
a child protection matter is referred to mediation by a court or where a public agency participates in the child
protection mediation;
 • sought or offered to prove or disapprove a claim or complaint of professional misconduct or malpractice filed
against a party, non-party participant, or representative of a party based on conduct occurring during a
mediation.

b. If a court or administrative agency finds, after a hearing in camera, that the party seeking discovery of the proponent
of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that
substantially outweighs the interest in protecting confidentially, and the mediation communication is sought or
offered in:
• a court proceeding involving a crime or felony; or
• a proceeding to prove a claim or defense that under the law is sufficient to reform or avoid a liability on a
contract arising out of the mediation.
c. A mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding.
d. If a mediation communication is not privileged under an exception in sub-section (a) or (b) hereof, only the portion
of the communication necessary for the application of the exception for non-disclosure may be admitted. The
admission of a particular evidence for the limited purpose of an exception does not render that evidence, or any
other mediation communication, admissible for any other purpose. (Article 3.23., IRR, RA 9285)
46. May a Mediator be allowed to make a report to communicate matters regarding Mediation?
As a Rule, NO. A mediator may not make a report, assessment, evaluation, recommendation, finding or other
communication regarding a
mediation to a court or agency or other authority that may make a ruling on a dispute that is the subject of a mediation,
except:
a. to state that the mediation occurred or has terminated, or where a settlement was reached; or
b. as permitted to be disclosed under Article 3.23 (Exception to the Privilege of Confidentiality of Information).
The parties may, by an agreement in writing, stipulate that the settlement agreement shall be sealed and not disclosed to any third
party
including the court. Such stipulation, however, shall not apply to a proceeding to enforce or set aside the settlement
agreement. (Article 3.24., IRR,
RA 9285)

❖ FEES AND COST OF MEDIATION

47. In Ad Hoc Mediation, what are the rules on Fees and Cost?
In ad hoc mediation, the parties are free to make their own arrangement as to mediation cost and fees. In default thereof, the
schedule of
cost and fees to be approved by the OADR shall be followed. (Article 3.25.,
IRR, RA 9285) 48. In Institutional Mediation, what does mediation cost include?
In institutional mediation, mediation cost shall include the administrative charges of the mediation institution under which the
parties have
agreed to be bound, mediator’s fees and associated expenses, if any. In default of agreement of the parties as to the amount
and manner of payment of mediation’s cost and fees, the same shall be determined in accordance with the applicable internal
rules of the mediation service providers under whose rules the mediation is conducted. (Article 3.26., IRR, RA 9285) 49. What
are the factors in determining mediation fee?
A mediation service provider may determine such mediation fee as is reasonable taking into consideration the following factors,
among
others:
a. the complexity of the case;
b. the number of hours spent in mediation; and
c. the training, experience and stature of mediators. (Article 3.26., IRR, RA 9285)

SEGMENT V: INTERNATIONAL COMMERCIAL ARBITRATION

50. What are the Terms Applicable to the Segment/Discussion on International Commercial Arbitration? Explain.
Terms Applicable to the Chapter on International Commercial Arbitration:
1. Appointing Authority as used in the Model Law shall mean the person or institution named in the arbitration agreement
as the appointing authority;or the regular arbitration institution under whose rules the arbitration is agreed to be conducted.
Where the parties have agreed to submit their dispute to institutional arbitration rules and unless they have agreed to a
different procedure, they shall be deemed to have agreed to the procedure under such arbitration rules for the selection
and appointment of arbitrators. In ad hoc arbitration, the default appointment of an arbitrator shall be made by the National
President of the Integrated Bar of the Philippines (IBP) or his /her duly authorized representative.
2. Arbitral Tribunal (under the Model Law) means a sole arbitrator or a panel of arbitrators.
3. Arbitration means any arbitration whether or not administered by a permanent arbitration institution.
4. Commercial Arbitration means an arbitration that covers matters arising from all relationships of a commercial nature,
whether contractual or [Link] of a commercial nature include, but are not limited to, the following commercial
transactions: any trade transaction for the supply or exchange of goods or services; distribution agreements; construction
of works; commercial representation or agency; factoring; leasing; consulting; engineering; licensing; investment;
financing; banking; insurance; joint venture and other forms of industrial or business cooperation; carriage of goods or
passengers by air, sea rail or road.
5. Convention Award means a foreign arbitral award in a Convention State.
6. Convention State means a state that is a member of the New York Convention.
7. Court (under the Model Law) means a body or organ of the judicial system of the Philippines (i.e., the Regional Trial
Court, Court of Appeals andSupreme Court).
8. International Arbitration means an arbitration where:
a. the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business
in different states; or
b. one of the following places is situated outside the Philippines in which the parties have their places of business:
• the place of arbitration if determined in, or pursuant to , the arbitration agreement;
• any place where a substantial part of the obligations of the commercial relationship is to be performed or the
place with the subject matter of the dispute is most closely connected; or
c. the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one
country.
For this purpose:
(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the
arbitration agreement; (b) if a party does not have a place of business, reference is to be made to his/her habitual
residence.
9. New York Convention means the United Nations Convention of the Recognition and Enforcement of Foreign Arbitral
Awards approved in 1958 andratified by the Philippine Senate under Senate Resolution No.71.
10. Non-Convention Award means a foreign arbitral ward made in a state, which is not a Convention State.
11. Non-Convention State means a state that is not a member of the New York Convention. (Rule 2, par. C, IRR, RA
9285