dao no 5 mediation

7/28/2019 Dao No 5 Mediation

1/22

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


2/22

Definition:

MEDIATION an alternative mode of dispute

resolution under which the Mediation Officerfacilitates the communication and negotiationbetween the parties, and assists them inreaching a voluntary agreement.

the decision-making authority rests with theparties

the Mediation Officer does not have the powerto compel the parties to a recommendedsolution

mandatory

may still be availed at any stage of theadjudication proceedings

confidential in nature


3/22

Other Modes of Resolving Disputes

Arbitration is an adjudicative form ofdispute resolution involving a mutuallyacceptable neutral third party

(arbitrator) empowered to make adecision on the merits after an informalhearing that usually includespresentation of evidence and oral

argument. Arbitral decisions aregenerally binding and subject to limited

judicial review.


4/22

continuation

Arbitration may be voluntary (by privateagreement) or compulsory (by

legislation or through a public court-annexed program).

Instead of a single arbitrator, a panel(generally a tripartite board) may beused.

Arbitration is widely used for laborrelations and commercial disputes.


5/22

Conciliation is a process in which aneutral third party (conciliator) conveys

information between parties and attemptsto improve direct communication betweenthem.

a report that describes the scope ofagreement and disagreement isprepared by the Conciliator

the role of a conciliator is more passivethan a mediator

most often used in collective bargainingdisputes.


6/22

Scope: (Trade & Industry LawsIncluding the Consumer Act of thePhilippines)

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


7/22

Rationale of the Exclusion

The main objective of mediation is toresolve a dispute between two privateparties. In a Formal Charge, the otherparty is the government.

In a Formal Charge, DTI is not justrepresenting an individual but theinterest of the public. Thus, enteringinto a compromise with the person who

violated public rights is contrary topublic policy. Further, it defeats theobjective of the law being implemented.


8/22

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 thepart of the Adjudication Officer)

d. Issuance of Decision


9/22

Pre-Adjudication Mediation

Sec. 4, Rule II -The pre-adjudicationmediation shall be set not later thanfive (5) days from receipt ofcomplaint

the notice should be personallyserved on the parties immediatelyupon receipt of the complaint

the conduct thereof is mandatoryprior to the application of theprocedures under DAO 7, s.2006

confidential in nature


10/22

Mediation During Adjudication

The Notice of Mediation shall be issuedwithin five (5) days from the filing of theanswer, or from the lapse of the period

to answer if none has been filed andshall be served on the parties at leastfive (5) days before the scheduledmediation. (Sec. 2, Rule X, DAO7)

Should mediation fail, the AdjudicationOfficer shall conduct a preliminaryconference (Sec. 1, Rule XI DAO 7)


11/22

Ideal Mediation Process:

STEP 1: Introduction

M.O. introduces self, have parties introducethemselves.

Explain and sign Mediation Agreement.

Describe process (no interruptions; note-taking; Complainant speaks first, thenRespondent.

Describe joint & private sessions,

confidentiality. Discuss no lawyer "representation."

Reinforce objective of mediation (resolution,not fact finding or investigation).


12/22

STEP 2: Complainant gives account of thecircumstances which lead to the filing of

the complaint.

Ask Complainant to describe thecircumstances leading to the filing of thecomplaint.

Listen.

Ask questions only if necessary, try toreserve questions until the end.

Keep things flowing. At this stage, do not ask what

complainant wants.


13/22

STEP 3: Respondent gives its account ofthe circumstances and discusses the

reason for its action(s).

Ask respondent to narrate thecircumstances.

Listen.

Ask questions only if necessary, try toreserve questions until the end.

Keep things flowing.


14/22

STEP 4: Ask Complainant and Respondentquestions to define the issues.

At the M.O.s discretion, the Complainantand Respondent may be allowed to askeach other questions

Assess parties attitudes towards eachother.

Do not ask meaningless questions. Do not ask what complainant wants.

Inform parties of subsequent steps:private confidential sessions beginning withcomplainant & final joint session.

Direct all parties to a waiting area.


15/22

STEP 5: Hold private, confidential sessionwith 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 tomake a prima facie case.

Ask what complainant wants.


16/22

STEP 6: Hold private, confidential

session with Respondent.

Summarize your understanding of whathas been said so far.

Assess case.

Inform Respondent of whatComplainant wants.


17/22

STEP 7: Negotiation begins.

Throughout the negotiation process, theM.O. should keep in mind that the

objective is to explore options forsettlement.

Encourage the parties to resolve theproblem between themselves.

Assess the productivity of the process;continue or end negotiations.


18/22

STEP 8 (a) : Go over the terms of thenegotiated settlement agreement with the

parties.

Clarify from the parties the exact terms andconditions of the agreement.

Direct the parties to reduce it in writing andsign and submit a notarized copy of thesame.

Thank the parties for participating andconclude the mediation.

Issue an Order approving the Agreement.


19/22

Step 8 (b). Whereno settlement isreached

Thank the parties for participating

and conclude the mediation. Issue a Certification, attesting that

Rule III of DAO 5, s. 2007 has beencomplied with.

Submit the case forarbitration/adjudication.


20/22

Step 9.Enforcement of Mediation orCompromise Agreement

immediately executory


21/22

Mediation vs. Arbitration

non-adversarial (mere

presentation of facts andpossible solution(s)

adversarial (there is

presentation of evidence)

the parties are given theopportunity to decide for andby themselves

the parties lose their

ability to participate

directly in the process

the parties may agree oncertain terms and conditionswithout adhering totechnicalities

parties in arbitration areconfined by traditional legalremedies

the Mediation Officer does nothave the power to compel theparties to a recommendedsolution

the arbitrator(s) determine theoutcome of the case.


22/22

END

Thank you!

dao no 5 mediation

Documents