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THE RULES ON MEDIATION

Legal basis: I. DTI DAO NO. 5, SERIES OF 2007 II. RA No. 9285, otherwise known as the Alternative Dispute Resolution (ADR) Act of 2004 III.Executive Order No. 526, s. 2006

Definition:
MEDIATION an alternative mode of dispute resolution under which the Mediation Officer facilitates the communication and negotiation between the parties, and assists them in reaching a voluntary agreement. the decision-making authority rests with the parties the Mediation Officer does not have the power to compel the parties to a recommended solution mandatory may still be availed at any stage of the adjudication proceedings confidential in nature

Other Modes of Resolving Disputes

Arbitration is an adjudicative form of

dispute resolution involving a mutually acceptable neutral third party (arbitrator) empowered to make a decision on the merits after an informal hearing that usually includes presentation of evidence and oral argument. Arbitral decisions are generally binding and subject to limited judicial review.

continuation

Arbitration may be voluntary (by private agreement) or compulsory (by legislation or through a public courtannexed program).
Instead of a single arbitrator, a panel (generally a tripartite board) may be used. Arbitration is widely used for labor relations and commercial disputes.

Conciliation is a process in which a neutral third party (conciliator) conveys information between parties and attempts to improve direct communication between them.
a report that describes the scope of agreement and disagreement is prepared by the Conciliator the role of a conciliator is more passive than a mediator most often used in collective bargaining disputes.

Scope: (Trade & Industry Laws Including the Consumer Act of the Philippines) walk-in or phoned-in verbal inquiries walk-in or phoned-in verbal complaints written complaints sent via ordinary mail complaint sent via electronic means

Excluded: Formal Charges

Rationale of the Exclusion The main objective of mediation is to resolve a dispute between two private parties. In a Formal Charge, the other party is the government. In a Formal Charge, DTI is not just representing an individual but the interest of the public. Thus, entering into a compromise with the person who violated public rights is contrary to public policy. Further, it defeats the objective of the law being implemented.

Procedure or Practice Adopted by DTI


1. Pre-adjudication Mediation 2. Arbitration a.Adjudication Mediation b.Preliminary Conference c. Submission of Position Paper (conduct of hearing, discretionary on the part of the Adjudication Officer) d. Issuance of Decision

Pre-Adjudication Mediation

Sec. 4, Rule II -The pre-adjudication mediation shall be set not later than five (5) days from receipt of complaint the notice should be personally served on the parties immediately upon receipt of the complaint the conduct thereof is mandatory prior to the application of the procedures under DAO 7, s.2006 confidential in nature

Mediation During Adjudication The Notice of Mediation shall be issued within five (5) days from the filing of the answer, or from the lapse of the period to answer if none has been filed and shall be served on the parties at least five (5) days before the scheduled mediation. (Sec. 2, Rule X, DAO7) Should mediation fail, the Adjudication Officer shall conduct a preliminary conference (Sec. 1, Rule XI DAO 7)

Ideal Mediation Process:


STEP 1: Introduction M.O. introduces self, have parties introduce themselves. Explain and sign Mediation Agreement. Describe process (no interruptions; notetaking; Complainant speaks first, then Respondent. Describe joint & private sessions, confidentiality. Discuss no lawyer "representation." Reinforce objective of mediation (resolution, not fact finding or investigation).

STEP 2: Complainant gives account of the circumstances which lead to the filing of the complaint.

Ask Complainant to describe the circumstances leading to the filing of the complaint. Listen. Ask questions only if necessary, try to reserve questions until the end. Keep things flowing. At this stage, do not ask what complainant wants.

STEP 3: Respondent gives its account of the circumstances and discusses the reason for its action(s). Ask respondent to narrate the circumstances. Listen. Ask questions only if necessary, try to reserve questions until the end. Keep things flowing.

STEP 4: Ask Complainant and Respondent questions to define the issues.


At the M.O.s discretion, the Complainant and Respondent may be allowed to ask each other questions Assess parties attitudes towards each other. Do not ask meaningless questions. Do not ask what complainant wants. Inform parties of subsequent steps: private confidential sessions beginning with complainant & final joint session. Direct all parties to a waiting area.

STEP 5: Hold private, confidential session with Complainant. (most important step) Build Trust. Ask complainant if he/she has any thing else to add. Summarize your understanding of what has been said so far. Assess case, review what it takes to make a prima facie case.
Ask what complainant wants.

STEP 6: Hold private, confidential session with Respondent.


Summarize your understanding of what has been said so far. Assess case. Inform Respondent of what Complainant wants.

STEP 7: Negotiation begins.

Throughout the negotiation process, the M.O. should keep in mind that the objective is to explore options for settlement. Encourage the parties to resolve the problem between themselves. Assess the productivity of the process; continue or end negotiations.

STEP 8 (a) : Go over the terms of the negotiated settlement agreement with the parties.
Clarify from the parties the exact terms and conditions of the agreement. Direct the parties to reduce it in writing and sign and submit a notarized copy of the same. Thank the parties for participating and conclude the mediation. Issue an Order approving the Agreement.

Step 8 (b). Where no settlement is reached

Thank the parties for participating and conclude the mediation. Issue a Certification, attesting that Rule III of DAO 5, s. 2007 has been complied with. Submit the case for arbitration/adjudication.

Step 9. Enforcement of Mediation or

Compromise Agreement
immediately executory

Mediation vs. Arbitration


non-adversarial (mere presentation of facts and possible solution(s) the parties are given the opportunity to decide for and by themselves the parties may agree on certain terms and conditions without adhering to technicalities adversarial (there is presentation of evidence) the parties lose their ability to participate directly in the process parties in arbitration are confined by traditional legal remedies

the Mediation Officer does not the arbitrator(s) determine the have the power to compel the outcome of the case. parties to a recommended solution

END

Thank you!