Negotiation

- is a two way process of communication.

- the purpose is to reach an agreement
2 types of Communication
1. problem solving the purpose is to gain
2. Competitive there is a winner and loser

1. labor
2. civil status of persons
3. validity of marriage
4. any ground for legal separation
5. the jurisdiction of courts
6. future legitime
7. criminal liability
8. those disputes which by law cannot be compromised

Mediation
- required a 3rd person who should be neutral
- there should be compromise agreement
- does not consider the merit of the case nor the weight of
the case
- the consideration is settlement
- must be impartial

Qualification of Mediator
1. discover the true issue
2. understand the wants and needs of each party
3. should be realistic in offering possible option
4. have their own code of conduct

Early Neutral Evaluation

- it discuss the merit of the case
- the mediator may be a judge during the ADR
- the judge will make an initial information and merit of the
case is discussed

5 basic requirement of a Mediator

1. bachelors degree
2. 30 yrs old of age have intelligence and wisdom
3. good moral character
4. willingness to learn new skills and render public service
5. proficiency in oral and written communication in English and
tagalong

Arbitration
1. it is adversarial process
and jurisdiction is acquired
by mutual agreement of the
party

Court
1. non-adversarial process
so once the case is file and
summon is served
jurisdiction is acquired
whether the party signed

2. if no agreement they
have to file action to
arbitration court and
arbitration will send a letter
once signed outcome is
final and binding
3. rules of court is
suppletory

2.

3. rules of court is follow

4. parties may appeal

Expert Determination
- there is a 3rd person invited to enlighten certain case, area
or information
- to determined the truthfulness of the information or
statement
- use as evidence only
Mini trial
- provide a limited information of the case
- no exhausted evidence
- sometimes its summary in nature
- labor is not mini trial but admin
- ex. NAPOLCOM
Exception to the Application of the ADR Act.

Q. Is mediator allowed to gain property being mediated?

A. no, mediator cannot acquire or gain property being mediated
Basic Characteristics of a Mediator
1. Attentive
2. listening skills
3. Responding to both feelings and meaning
4. reframing know how to rephrase the word
5. Reflective questioning - something that would make
someone: - think
- avoid discussing the merit of the case
- exercise prudence
6. assessment and referral skills
7. skills to work as a part of the team
Stages/Phases of Mediation
1. Preparation
a. initializing the conflict what is the problem
b. analyzing the conflict find the solution and the conflict
c. agreement on the ground of rules and procedure
d. creation of safe space
2. Intervention
a. exploration of the psychological and procedural issues
- are they fit
b. exploration of the substantive issue
- only court may have the option to tackle this
c. designing option
- should be clear and concrete
d. negotiation
- there should be agreement in principle
Principle agreement
= best alternative to negotiated agreement (BATNA)
= worst alternative to negotiated agreement (WATNA)

Q. What is the purpose of mediation?

A. to encourage settlement of disputes outside the court which
is enshrine in the lawyers oath.
I, do solemnly swear that I will maintain allegiance to the
Republic of the Philippines,
I will support the Constitution and obey the laws as well
as the legal orders of the duly constituted authorities
therein;
I will do no falsehood, nor consent to the doing of any in
court;
I will not wittingly or willingly promote or sue any
groundless, false or unlawful suit, or give aid nor consent
to the same;
I will delay no man for money or malice, and will conduct
myself as a lawyer according to the best of my
knowledge and discretion, with all good fidelity as well to
the courts as to my clients;
and I impose upon myself these voluntary obligations
without any mental reservation or purpose of evasion. So
help me God.

Rules of Court
- a person cannot file a case in the court without going through
mediation
Advantages of Mediation
1. It is voluntary
- if you did not appear you will be charge with contempt of
Court, fine and default
2. Process is not binding
- the consequence is the case will proceed
3. Uses independent party to mediate
4. Confidential
- not part of the record of the case
5. It is w/out prejudice
- it means you can still continue the case if the other party did
not fulfill the settlement

Phases of Mediation
A. Consolidation Phase
- reality check/testing in the solution
- review, reverse and implement
B. Diversion of case
1. Pre-trial
- plea bargaining
- court annex mediation
- JDR in MTC
- JDR done by a judge
- return to OCC for re-raffle then proceed to trial provided no
joint motion by the both party otherwise automatically reraffle
2. Trial
- judgment
- appeal annex court mediation
- JDR by the Judge
Court Proceeding
1. adversarial
2. situation on ground
3. as define by law
technicality is involved
4. used legal language
5. Training in law
6. knowledge on legal
procedure

ADR
Non-adversarial
Deals with situation as it is

No legal term rather ordinary

language
Training in mediation
Understand human mind,
feelings and situation