Mediation in the Philippines as an alternative mode of dispute resolution (ADR) is available through various forums. This is because of the absence then of a general law that would govern ADR such that several laws on various subjects (but would invariably include mediation as a part) were in effect. With the issuance in 2044 of the general law, the Alternative Dispute Resolution Act of 2004 (Republic Act No. 9285), a general legislative framework is now available for the promotion of Mediation as an ADR. Despite this, however, it is seen that the existing avenues for mediation shall continue to subsist but that there is room for more forum for ADR.
Under the ADR Act, Congress declared the State policy to promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. The State thus promotes and encourages the use of ADR as a means to achieve speedy and impartial justice and declog court dockets.
Cases Covered: Section 6 of RA 9285 specifically excludes from the coverage of the act the following types of disputes:
1. labor disputes covered by the Labor Code of the Philippines (PD 442), as amended, and its Implementing Rules and Regulations
2. the civil status of persons
3. the validity of a marriage
4. any ground for legal separation
5. the jurisdiction of courts
6. future legitime
7. criminal liability
8. those which by law cannot be compromised
Mediation under the ADR Act:
One of the modes of alternative dispute resolution the use of which is promoted and encouraged under RA 9285 is mediation. RA 9285 defines “Mediation” as a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute.
Kinds of Mediation: RA 9285 encourages mediation, whether ad-hoc or institutional but does not define ad-hoc mediation or institutional mediation. These two (2) types exclude the court annexed mediation modes described earlier. By inference from the descriptive words used:
1. ad-hoc mediation is one where the parameters of the mediation set by the parties are only for the particular dispute;
2. institutional mediation is one where the parties refer their dispute to an institution of mediators and agree to be bound by the rules of such institution.
Characteristics of Mediation under the ADR Act:
1. Place of Mediation may be the subject of agreement.
2. Assistance of lawyers or non-parties is allowed but may also be waived in writing but such waiver may be rescinded at any time.
3. Agreement by parties to institutional mediation necessarily includes an agreement that the parties, the mediator, their lawyers or nonparty participant are bound by the internal rules and administrative policies of the mediation institution. Should there be a conflict between the institution’s rules and RA 9285, the latter shall prevail.
4. Information obtained through mediation which would otherwise not have been subject to the modes of discovery sanctioned by rules of procedure is considered privileged and confidential and cannot be introduced as evidence. There are exceptions to the privilege in RA 9285 as enumerated under Section 11 thereof.
5. If settlement is reached during mediation, parties prepare settlement agreement, with assistance of their respective counsel and of mediator, The mediator certifies that the terms of the agreement has been adequately explained to the parties in a language know to them. If parties agree, they may be deposited with the “appropriate Clerk of the Regional Trial Court” of the place where any one of the parties reside. Should there be a need to invoke the power of the courts to enforce the agreement, a petition may be filed in that court, which shall proceed summarily to hear the petition.