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APPENDIX A

TRANSMITTAL LETTER (1)

(Date)

______________________
Qimonda Bldg. Cebu City
Cebu, Philippines

Greetings!

The undersigned is a senior law student at the University Of Cebu- College Of Law and
is currently conducting a study entitled “Evading Pitfalls: Granting the Philippine
Mediation Center Powers of Contempt and Subpoena to Expedite Dispensation of
Justice,” as a requirement for a degree in Juris Doctor.

The study aims to explore the challenges experienced by mediators during mediation and
to determine whether or not the Supreme Court may grant of coercive powers such as
subpoena and contempt powers to Philippine Mediation Center (PMC) to further aid the
courts in the speedy and inexpensive disposition of cases.

The researcher believes that your knowledge and inputs will surely be a value in this
study. With this, the undersigned humbly ask from your good office to be allowed to take
some time to conduct an interview regarding my research topic. Rest assured that your
answers will be only utilized for this research and will be given utmost confidentiality.

I hope that you will grant my humble request. Thank you very much.

Respectfully yours,

MASSABIELLE SHERLAINE L. NEBRIDA


Contact No.: +63 977 372 0780
Researcher

APPENDIX B
TRANSMITTAL LETTER (2)

(Date)

______________________
Midway Bldg.,
Salvador Ext, Happy Valley Subd.
Banawa, 6000
Cebu City
Tel No.: (032) 262-0098
Email: accvisayas_cebu@yahoo.com

Greetings!

The undersigned is a senior law student at the University Of Cebu- College Of Law and
is currently conducting a study entitled “Evading Pitfalls: Granting the Philippine
Mediation Center Powers of Contempt and Subpoena to Expedite Dispensation of
Justice,” as a requirement for a degree in Juris Doctor.

The study aims to explore the challenges experienced by mediators during mediation and
to determine whether or not the Supreme Court may grant of coercive powers such as
subpoena and contempt powers to Philippine Mediation Center (PMC) to further aid the
courts in the speedy and inexpensive disposition of cases.

The researcher believes that your knowledge and inputs will surely be a value in this
study. With this, the undersigned humbly ask from your good office to be allowed to take
some time to conduct an interview regarding my research topic. Rest assured that your
answers will be only utilized for this research and will be given utmost confidentiality.

I hope that you will grant my humble request. Thank you very much.

Respectfully yours,
MASSABIELLE SHERLAINE L. NEBRIDA
Contact No.: +63 977 372 0780
Researcher
APPENDIX C
INFORMED CONSENT FORM
I have been asked to take part in research project by Massabielle Sherlaine L. Nebrida.
The researcher explained the nature of the project to me in detail. I should feel free to ask
questions. If I have additional questions later, Massabielle Sherlaine L. Nebrida, the
person mainly responsible for the study will make herself available to discuss the
research further to me.

Description of the Project. I have been asked to take part in the project in which I will
be asked about my knowledge and experiences on Court-Annexed Mediation. My role in
the study will involve an interview which will last about ____________ and will be
recorded. My name will not be recorded and after the transcription, the recorded
interview will be destroyed.

Risk. The possible risk in the study would be very minimal for I am only asked questions
that will tend to answer the incidences relating to the procedures in conducting court
annexed mediation, the difficulties encountered, and the factors affecting the parties to
amicably settle.
Confidentiality. My participation in the study is confidential to the extent which is
permitted by existing laws. None of the information collected will identify me by name.
All information provided by me will be treated with utmost confidentiality.

Rights and Complaints. If I have concerns about the research I may contact Massabielle
Sherlaine L. Nebrida at +63 977 372 0780 or through e-mail at
nebridamassabielle@yahoo.com.

I have read the consent form and understand what is stated. Any questions I have about
the research have been answered. By affixing my signature, I signify my willingness to
participate in the study. The consent will be kept and will not be attached to any
transcript of materials.

____________________ _____________________

Researchers’ Signature Informants’ Signature

____________________

Date

APPENDIX D

INTERVIEW GUIDE FOR MEDIATORS


To whom it may concern;

I am Massabielle Sherlaine L. Nebrida, an incoming fourth year student of the


University of Cebu, taking up Juris Doctor. I am currently conducting a study entitled
“Evading Pitfalls: Granting the PMC Powers of Contempt and Subpoena to Expedite
Dispensation of Justice”. In line with this, I am requesting you to spare a few minutes of
your time to answer the questionnaire honestly. Rest assured that all the answers will be
treated with utmost confidentiality.

Thank you very much!

Respectfully yours,

Massabielle Sherlaine L. Nebrida

I. Problems Encountered during Mediation

1. What are your challenging experiences with the procedures in mediation?


2. What are the problems you had encountered due to non-appearance of
party/parties during mediation?
3. What are the problems you had encountered due to lack of power to sanction
party/parties in a mediation?
4. What are the remedies of mediators in case a party or parties to a case referred
for mediation does not attend mediation?

II. Unsuccessfully Mediated Cases

1. What are the reasons for unsuccessful mediation?


2. What will happen to the court-referred cases which are not successfully
mediated?
3. In your own opinion, how does the appearance and participation of the
parties/party to mediation affect amicable settlement?
END

APPENDIX E

INTERVIEW GUIDE FOR LAWYERS, JUDGES, AND JUSTICES


To whom it may concern;

I am Massabielle Sherlaine L. Nebrida, an incoming fourth year student of the


University of Cebu, taking up Juris Doctor. I am currently conducting a study entitled
“Evading Pitfalls: Granting the PMC Powers of Contempt and Subpoena to Expedite
Dispensation of Justice”. In line with this, I am requesting you to spare a few minutes of
your time to answer the questionnaire honestly. Rest assured that all the answers will be
treated with utmost confidentiality.

Thank you very much!

Respectfully yours,

Massabielle Sherlaine L. Nebrida

I. Problems Encountered during Mediation

1. What are the effects of the non-appearance of a party or parties in


mediation in the speedy and inexpensive disposition of cases?
2. In your opinion, may the mediators be given powers of subpoena and
contempt to compel parties to attend Court-Annexed Mediation
and to further aid the courts in the speedy disposition of cases?

II.Whether or Not the Supreme Court is Empowered to Grant Powers to PMC

1. What is the extent of the rule-making power of the Supreme Court?

2. May the Supreme Court grant the PMC, through an administrative act, powers of
contempt and subpoena?
3. If yes, will it not violate the doctrine of separation of powers?

4. Other than the powers of contempt and subpoena, what do you think should be
done in order to fulfill the mandate of PMC which is conciliation in aid of speedy
disposition of cases?

5. If no, should there be a law? What do think should be done in order to fulfill the
mandate of PMC which is conciliation in aid of speedy disposition of cases?

END

APPENDIX F

TRANSCRIPTION OF ANSWERS (1)


I.Problems Encountered during Mediation

3. What are your challenging experiences with the procedures in mediation?

The biggest procedural challenge in mediation is in the pre-mediation stage,


where it is important to set the parties into a proper mindset for compromising.
The secondary challenge is of course getting the parties together. And the final
challenge is getting over a deadlock when parties become emotional and close
their options (Informant 1)

One of our challenges is when parties agree to mediate but after the pre-
mediation conference, they no longer show up. If they do not appear, there is no
mediation to speak up. We have right to compel the parties to attend. (Informant
2)

One of the challenges we face is when the parties start to negotiate, we


sometimes have challenges in how to effectively facilitate the settlement and to
reach the desire objectives of the parties. (Informant 3)

One of the challenges we face is when one of the parties in mediation is very
willing to settle and the other one does not. Sometimes the unwilling party would
no longer attend the next scheduled setting. We sometimes use our own resources
just to get contact with the parties. (Informant 4)

III. What are the problems you had encountered due to non-appearance of
party/parties during mediation?

The appearance and participation of the parties is the most important


ingredient in successfully settled cases, the reason being that they are the only
ones in the best position to know what they can compromise and what they
cannot.

When the parties don’t appear for mediation, the easiest thing is to return
back the case to court. But I don’t settle for that. I normally ask the parties if
they are willing to explore the mediation option in settling their conflict, and if
yes, I send out a notice of mediation to the absentee party and request the
present party to facilitate its delivery through courier or with the help of the
barangay tanod.” (Informant 1)

When the parties do not appear, the objective of mediation which is


settlement is not met. It would not also help the court in declogging court
dockets. When they do not appear after they have agreed to go to mediation, that
case is automatically added to our unsuccessfully mediated cases. The case will
be added to the hundreds of cases that remain pending in court, but it is a good
thing if the parties will settled during JDR headed by the judge. (Informant 2)

Non-appearance of the parties bears no problem to us because we just


simply return it back to the court with Notice of Non- Appearance because
unsuccessfully mediated cases are returned to court for JDR or for continuation
of trial. (Informant 3)

When the parties do not appear, the objective of mediation which is


settlement is not met. It would not also help the court in declogging court
dockets. (Informant 4)

IV. What are the problems you had encountered due to lack of power to sanction
party/parties in a mediation?

We have no power to sanction the parties during mediation. However, if


given that power, these are the situations we would like to sanction: a. when the
counsels interfere in the mediation process and try to make an upper hand for
their client; b. when the authorized representative is not given the full authority
to decide, in which case we like to disregard the SPA given and mark the
decision maker or the principal as absent; and c. when parties do not appear on
mediation after they have agreed to mediate. Currently, our duty is merely to
recommend to the court to impose sanctions. (informant 1)

Having no power to sanction is not really a problem for me because the


court will only be notified on the non-appearance based on the mediators
report or record.”(Informant 2)

Because we have no power to sanction the parties, they disregard


mediation. They are disrespectful during mediation and they don’t realize
the importance of mediation.” (Informant 3)

Mediation is by nature voluntary and confidential, and it is for this


reason that if parties, after a very nice and well-worded opening statement
of the Mediator, still continue not to cooperate having on their mind so
much pride, anger and vengeance, the proceeding shall be terminated.”
(Informant 4)

What are the remedies of mediators in case a party or parties to a case


referred for mediation does not attend mediation?
When the parties don’t appear for mediation, the easiest thing is to return
back the case to court. But I don’t settle for that. I normally ask the parties if
they are willing to explore the mediation option in settling their conflict, and if
yes, I send out a notice of mediation to the absentee party and request the
present party to facilitate its delivery through courier or with the help of the
barangay tanod.” (Informant 1)

It is the court who has the prerogative to sanction the non-appearing


parties. (Informant 2)

We only recommend sanctions to the honorable court. The judge is the


one who may impose sanctions (Informant 3)

We send Notice of Mediation to the absentee-party, requesting him to


appear on a scheduled date of mediation reflected in such notice. (Informant 4)

V. Unsuccessfully Mediated Cases


4. What are the reasons for unsuccessful mediation?

One of the primary reasons for unsuccessfully mediated cases are when
the parties agreed to mediate but during the scheduled mediation, they or one
party would not appear. We also have refer back cases to court based on the
following reasons Non-appearance of party/parties; refusal of party/parties; lack
of authority of parties’ representatives to enter into compromise agreement;
referred case not mediatable; and, non-payment of mediation fee.
(Informant 1)
Many factors are involved are involved, like going to court is futile. The
cost of litigation and the length of the proceedings. Whne the parties are able to
talk to each other and willing to forego their dispute, through the competence of
mediators hoe to to pacify each other, and many else. (Informant 2)

The mediators who can explain very we to the parties about mediation and
the dis advantages of court litigation. In mediation, the parties will not waste
more money and time in litigating the case. Unlike in court. (Informant 3)

There are many reasons why mediation fail: a. absence of the real decision
maker, and the authorized representative is not equipped with full authority to
negotiate a settlement and cannot take the shoes of the principal; b. the parties
are too emotional about the issue ,so there is pride getting in the way of reaching
to the other side for a compromise; c. both of the parties just wanted to tackle
the legal issue. (Informant 4)
2.What will happen to the court-referred cases which are not successfully mediated?

Unsuccessfully mediated cases are returned to court for JDR or continuation


of trial, or they may be sent back to court in the future when the parties request to
because they are now open to mediation. (Informant 1)

When the parties do not appear, the objective of mediation which is


settlement is not met. It would not also help the court in declogging court
dockets. When they do not appear after they have agreed to go to mediation, that
case is automatically added to our unsuccessfully mediated cases. The case will
be added to the hundreds of cases that remain pending in court, but it is a good
thing if the parties will settle during JDR headed by the judge. (Informant 2)

It is returned back to court, and the court will continue to hear the case.
(Informant 3)

We send back the case to the court with reports and recommendation.
(Informant 4)

5. In your own opinion, how does the appearance and participation of the parties/party to
mediation affect amicable settlement?

The appearance and participation of the parties is the most important


ingredient in successfully settled cases, the reason being that they are the only
ones in the best position to know what they can compromise and what they
cannot. (Informant 1)

Very necessary, it is they themselves who can decide on the outcome of the
mediation conference. (Informant 2)

If both parties are willing to settle the case, it is found out during pre-
mediation. (Informant 3)

If the parties appear, options for settlement would eventually be explored.


(Informant 4)

APPENDIX G

TRANSCRIPTION OF ANSWERS (2)


Question Answers of Lawyers, Judges and Justices

I.
1. What are the Informant 5
effects of the
non- “The effect is that the mediation process does not begin at all. The
appearance of a schedule given to them would be a waste of time and resources. The
party or parties PMC would have to schedule another day for mediation.
in mediation in
the speedy and Another is that the PMC cannot issue subpoenas to assure attendance by
inexpensive the parties during their scheduled day for mediation. Similarly, they
disposition of cannot sanction the party or parties for not attending the mediation. The
cases? case is returned to the court.”

Informant 6
“I cannot think of problems encountered by PMC due to non-appearance
of parties. I think the mediators are even happy with this reality because
it means less work for them. Joking aside, even if mediators would
faithfully execute their mandate, they cannot do anything about it (non-
appearance of parties) as they have no coercive power to compel
attendance of the parties during mediation.”

Informant 7

“For me, since Mediation is part of pre-trial, the following rules shall
also be applicable: Section 5, Rule 18 of the Rules of Court, states that
the failure of the plaintiff to appear when so required pursuant to the next
preceding section shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless otherwise ordered by the court.
A similar failure on the part of the defendant shall be cause to allow the
plaintiff to present his evidence ex parte and the court to render
judgment on the basis thereof. The next section to that also provide that
it shall be the duty of the parties and their counsel to appear at the pre-
trial. The non-appearance of a party may be excused only if a valid cause
is shown therefor or if a representative shall appear in his behalf fully
authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and of documents. It is proper to give sanctions,
otherwise, the purpose of the law the purpose of the law will be
defeated.”

Informant 8
“In mediation, attendance of the parties is voluntary. Although mediation
is mandatory. However, these non-appearing parties who agreed to
mediate be may be sanctioned. Under the Rules of Court, once there is
an agreement of the parties to submit their case to mediation, it is
mandatory that they should comply. So, what would be the effects in the
speedy disposition of cases if the parties are not present? Remember, the
main aim of mediation is the speedy and inexpensive determination of
cases. The Supreme Court made an Administrative Matter that provides
for sanction for non-appearing parties. This is made to promote and
encourage mediation among parties.”

Informant 9
“It will not lessen court dockets, and there will be no chance for the
parties to settle in the mediation level. The non-appearing may be
sanctioned.”

Informant 10
“The non-appearance of the parties would mean a failure to the
mediation because without the parties, unless there are authorized
representatives, nobody will be mediated by the mediator. Hence, most
probably, the case will proceed to trial with its accompanying delays and
expenses. The non-appearing parties may be sanctioned by the court.”

Informant 11
“Non-appearance of parties during mediation proceedings frustrates the
purpose of mediation which is conciliation in aid of speedy and
inexpensive disposition of cases.”

Informant 12
“The absence of parties in the CAM vis-a-vis the speedy disposition of
cases, will really greatly affect the process because the CAM was put
into place as one of the tools or means to effect speedy disposition of
cases so if the parties do not cooperate this will be a hindrance to the
program of dispensing justice with celerity.”

Informant 13
“If the parties do not attend mediation, there are sanctions provided
under the Administrative Matter which provides for the revised
guidelines for the implementation of CAM. As to its effect in the speedy
disposition of cases, in real practice, the goal which is expedient
disposition of cases is not really met. But it’s not true. It does not happen
in real setting. Even if the parties would attend mediation, it is not a
guarantee that they will not reconcile. So, if they will not reconcile, from
mediation, the case will be returned back to court and the court will
Supreme Courthedule for pretrial. But before trial proper, the judge will
again talk to the parties and the lawyers. Purpose? Amicable settlement
through JDR. If the parties do not appear during mediation, there will be
less chances for settlement. We cannot expect speedy disposition of
cases.”

Informant 14
“There is practically no effect to the speedy and inexpensive disposition
of cases when the parties do appear during mediation. The parties’ non-
appearance signifies their least interest in amicably settling the case.
Considering that one of the basic principles of mediation is
voluntariness, the positive effect of mediation in the disposition of cases
is manifested only when the parties themselves are willing to settle.”

2. In your Informant 5
opinion, may
the mediators “Yes, they may be given those powers through the rule-making power of
be given the Supreme Court. Those rules may be incorporated or added to our
contempt and Rules of Court. This would be an innovation by the Supreme Court to
subpoena address the issue of clogged court dockets resulting in slow and
powers by the inefficient administration of justice.”
Supreme
Court? Informant 6
“No, granting contempt and subpoena powers to the mediators would
just complicate the pre-trial stage. Moreover, this can be prone to abuse
and corruption. They can even delay the pre-trial stage as the parties are
now given the chance to question the acts of the mediator in court.
Moreover, contempt and subpoena are inherently judicial or quasi-
judicial powers which are clearly beyond the power of a mediator.”

Informant 7
“Yes. It is within the ambit of their authority provided by the
Constitution. Because the PMC is an entity under the PHILJA which is
an autonomous body created by a Republic Act under the supervision of
the Supreme Court and the main purpose of the PMC is to implement the
CAM, and being a court process it should be given the same processes or
powers which are adjunct to regular court of justice. So, if a court of
justice has an inherent power to issue contempt against any erring
litigants or lawyers as well as to issue subpoena, the more that the PMC
be given also power by the Supreme Court if there will be a strong lobby
for that because as what I have said the main objective of creating that
one is to operationalize court annexed mediation and that is part of court
proceedings.”

Informant 8
“As of now, contempt powers are lodged to the courts only. Cases
involving administrative bodies, the Supreme Court in the case of LBP v.
Listana said that administrative bodies cannot contempt parties directly.
Kaning subpoena, naa gyud ni sa tanang administrative bodies. Power to
issue subpoena. So di na gyud na siya kailangan nga pun-an nga tagaan
sila power to issue subpoena. Naa na siya daan. What if the subpoena is
violated? If the subpoena is violated, under the present rule, the party
may be held in contempt of court. But still it is only the court who may
issue the order. Mot the administrative body. I don’t think the court
system is ready to grant powers of contempt to PMC. Their function is
voluntary on their part. They have to be well trained about the law. They
don’t even get their honorarium on time. Because of the stringent
qualifications before contempt power may be exercised, even if they are
willing and motivated, they are still not qualified.”

Informant 9
“Yes, it is possible. It is within the rule-making power of the Supreme
Court.”

Informant 10
“Giving coercive powers of contempt to mediators will surely increase
the chances of settlement. However, this set-up may become prone to
abuse if adequate safeguard mechanism will not be put in place.
Moreover, there might be procedural issues that might crop-up. Also,
this set-up may become prone to abuse if adequate safeguard mechanism
will not be put in place.”

Informant 11
“Giving coercive powers of contempt and subpoena to mediators will
contribute to the speedy resolution of cases because parties will be
compelled to attend mediation for fear of contempt if the circumstances
of their absence would cause intentional delay in the dispensation of
justice.”

Informant 12
“So there are two incidence there. The power to issue a subpoena and the
power to cite a party/ies in contempt. I presume that the power of
contempt if founded on the ground that the parties failed to appear at a
CAM after they shall have been summoned. The power to issue a
subpoena, there is that possibility that it can be issued to them because
they have means of determining who are the parties who shall appear
before them . but at the first instance, when the case is referred to them ,
the court already notifies the parties. So in that sense there might be no
need to issue because once the court refers the case to mediation, the
parties are notified. However if any or all of the parties do not appear
once the case has been referred to the cam, there might be a need for the
cam themselves to issue the subpoena to the parties to shorten the
proceedings because the mediator is given specific period by the court
within which to conduct the mediation. So, if any or one of the parties is
or are absent there is may be a need to issue a subpoena. The problem
now, is when the subpoena is disobeyed despite receipt, so you are
exploring the possibility of whether the parties can be cited in contempt
of court.
Now, contempt of court is quiet a heavy thing. Meaning it should not be
something which could be treated lightly. First, we have the problem of
whether the mediator is well versed of the nuances of the rules and the
procedure. For example when is subpoena duly served, deemed served,
we have incidence of who can properly receive. one who can properly
serve and one who can properly receive a subpoena. So, I think, as things
are now, considering that not all of the mediators are trained in law,
contempt power I think should be reserved to the court. Because anyway
the failure to appear at the cam, can be subject to sanctions under the
rules. The same sanctions that can be imposed against a party who does
not appear before the mediators, under the rules they can be penalized.
Under the rules on failure to appear during the pre-trial conference, in
that case, if it is the plaintiff who fails to appear during mediation, the
case can be dismissed by the court. And if it is the defendant who fails to
appear, the defendant can be deemed to have been as in default. In which
case the plaintiff can present his evidence ex parte.”
Informant 13
“If we look at the nature of the duties of the mediators, they are
considered quasi-judicial officers. They are merely there to facilitate if
the parties would agree to settle. Only if they agree to settle. The
mediator is not even the one engaged in the settlement. It is the parties
who would initiate the conditions for their settlement. So, it might be
difficult to give coercive powers of contempt. Since they are not
considered judicial officers or quasi-judicial officers. Though they are
officers of the court, they are not necessarily involved in judicial
functions or quasi-judicial functions.
Although they (mediators) are officers of the court, they are not
necessarily involved in judicial functions or quasi-judicial functions.
Meaning to say, they cannot adjudicate. They don’t have adjudicative
functions to compel the attendance of the parties during mediation. It’s
not contempt power which is the only tool that can compel the parties to
attend.”

Informant 14
“Contempt and subpoena powers for mediators are unnecessary. The
need for subpoena is already addressed by the court order directing the
parties to appear before the PMC unit. Meanwhile the end intended to be
served by the contempt power is dealt with by the provision in A.M. No.
11-1-6-SUPREME COURT-Philja that the court’s order shall include a
clear warning that sanctions, including contempt, may be imposed upon
a party who fails to appear before the PMC.”

II.
1. What is the Informant 5
extent of the
rule-making “The extent of the rule-making power of the Supreme Court is so wide.
power of the As long as it is about court procedure including pleadings and practice
Supreme and the admission of lawyers, the Supreme Court has the ultimate power
Court? to provide the rules. These powers are enshrined in our present
Constitution.”

Informant 6
“Sec 5(5) Art. VIII of the Constitution vests the court the rule-making
power. It is so broad.”
Informant 7
“The rule-making power of the Supreme Court is so broad. The
constitution allows the Supreme Court to promulgate rules of procedure/
rules of court. And it is an exclusive power of the Supreme Court.”

Informant 8
“The coverage of the rule-making power of the Supreme Court is so
wide. It involves all pleading practice and procedure. Their power is
supreme provided it will not violate the substantive right of the parties.
Meaning rights granted by law.”

Informant 9
“The rule-making power of the Supreme Court is based on a
Constitutional provision. The Supreme Court in the case of Bustos v.
Lucero said that the extent of the court’s power is not merely to compile,
revise, or codify the rules of procedure existing at the time of the
Constitution’s practice, and procedure in all courts’, which is the power
to adopt a general, comprehensive system of procedure, adding new and
different rules without regard to their source and diSupreme Courtarding
the old ones. Take note also that like all other grants of power, such
authority is not absolute and by the very nature of things must be subject
to limitations.”

Informant 10
“The rule-making power of the Supreme Court is so broad. However, it
is subject to some limitations. These are the limitations: the rules shall
provide for the speedy disposition of cases, the rules shall be uniform for
all courts of the same grade; and they shall not diminish, increase or
modify substantive rights. You can read it from the Constitution.”

Informant 11
“The Constitution provides that the Supreme Court may promulgate
rules concerning pleadings and procedures. Even the admition to the
Philippine Bar. This means for me that the Supreme Court may make or
amend rules, provided that it will not violate any substantive rights.”
Informant 12
“I would think that the rule making power of the Supreme Court is broad
in the sense that it can promulgate rules in so far as rules of procedure
pertaining to the trial of cases. Including court annexed mediation for
example are concerned so it’s really very broad although the constitution
itself has set limitations. And it is only for the Supreme Court to
implement rules which will simplify the procedure and effect the speedy
disposition of the cases.”

Informant 13
“Rule making power of the court is very expansive. As a matter of fact,
several times the rules made by the courts are questioned because it
allegedly amounts to judicial legislation. But since the rule making
power of the Supreme Court is so expansive and very expressed in the
constitution, the Supreme Court is able to defend its power. Many times,
in many cases, they were able to defend the pronouncements and
issuances that it’s part of the rule making power of the Supreme Court.”

Informant 14
“The extent of the rule making power of the Supreme Court under
Sections 5(5) and 13, Article VIII of the 1987 Constitution pertaining to
the promulgation of rules concerning practice and procedure in all courts
is its exclusive domain.”
2. May the Informant 5
Supreme Court
grant powers to“Yes. The Supreme Court may grant the PMC the powers of contempt
an adjunctand subpoena because it is an exercise of the SC’s power under their
body like the rule-making making power in matters of procedure in courts including
PMC powers the PMC. I would suggest that these powers be given through an
of contempt? amendment of the present Rules of Court so that it would be formally
Will it not and officially part of procedure and would surely be studied by law
violatate the students and practitioners alike.
doctrine of
Separation of No, it would violate the doctrine of separation of powers; as I have
Powers? mentioned before, it is under the rule-making power of the Supreme
Court.

Other than powers of contempt and subpoena, the court should also hire
or appoint the best and the brightest mediators. They should be
competent and well-versed with law and procedure.”

Informant 6
“Yes, mediation is a part of pre-trial which is considered as a procedure
in law under the ambit of Sec 5 (5) Art. VIII, 1987 Philippine
Constitution

No, it will not violate for the same reason in no. 2. The court must be the
one that should sanction the party or parties who does / do not appear
during mediation. Since mediation is part of pre-trial, the court may
apply the relevant sanctions found in the rules of court, for instance, it
may dismiss the complaint of the plaintiff if it fails to show up during
the mediation.”

Informant 7
“There is no such thing as Doctrine of Separation of Powers here.
Because as what I’ve said a while ago, the constitution allows the
Supreme Court to promulgate rules of procedure/ rules of court. And it is
an exclusive power of the Supreme Court. The congress cannot legislate
with respect to Rules of Court. And the only legislative enactment
allowed by law or by the constitution is for the creation of additional
courts is a legislative enactment and for the expansion of jurisdiction.
For example, jurisdiction in criminal cases, at present, when its prision
correccional or 6 yrs and below it’s with the MTC, MTCC, the lower
courts like that. If beyond 6 years its already in the RTC. Now to change
the jurisdiction, like when the first level courts will expand jurisdiction,
its only congress can legislate on that because that is not the part of the
rule making power of the Supreme Court. The Supreme Court can only
promulgate wat the procedures to be followed in courts. But as to what
courts are to be created, and what are the jurisdictions of these courts is
within congress. And the PMC is a creation of law which provided that,
ahh. Its created by law because under the Constitution only the congress
can create any govt agencies. but now that it is already created by law
and it is made as an adjunct of PHILJIA, which is an autonomous body
under the Supreme Court, it follows that what are the rules to be
followed in the PMC is to be promulgated by the Supreme Court. Its
already exclusive in the Supreme Court. So, congress has no more say
with those procedures to be followed. Because issuance of subpoena as
well power of contempt is a rule of procedure.”

Informant 8
“It will not violate the Doctrine of Separation of powers. Matters of
procedure, it’s always the Supreme Court. But if it will involve a
substantive law and like if the Supreme Court would like to increase its
jurisdiction of Supreme Court, must consult the Congress. This was the
ruling in Fabian v. Desierto case. Remember, if matters of procedure,
always the Supreme Court. Provided it will not violate the substantive
right of the parties. Meaning rights granted by law. That a limitation.”

Informant 9
“It will not violate Doctrine of Separation of Powers because as what I
have said, the Supreme Court is empowered to promulgate rules and
amend the rules. It may grant powers to the PMC if it wants to.”

Informant 10
“It will not violate the doctrine because the mediation by PMC is court-
annexed mediation. The proceedings of PMC is considered part court
proceedings.”

Informant 11
“It will not, because it is within the ambit of the Supreme Court.”

Informant 12
“My answer would be related to the second question. But with regard to
a general question of like for example an adjunct body, it this adjunct
body is performing a quasi-judicial function, then it may have contempt
powers. But if for example a mediator, a mediator to my mind is not a
quasi-judicial officer who performs a quasi-judicial function. so, he is
simply a mediator to mediate between the parties. So I think in that case,
the mediators as they are now, I do not recommend that they be given
contempt power.”

Informant 13
“It will not violate the Doctrine of Separation of Powers because when
they issued the grant, it is as if they are in the judiciary, it is not an
administrative function, not executive nor legislative.”

Informant 14
The Supreme Court may grant the PMC such powers if it wants to. It
will not even violate the doctrine of separation of powers since the grant
of such powers to the PMC is part of the Highest Court’s
Constitutionally-enshrined rule-making power to prescribe the procedure
in the courts.

3. What do you Informant 5


think should be
done in order
to strengthen
the powers and
Informant 6
functions the
PMC? Informant 7
“This is good introduction. Giving them contempt power as well as the
power to issue subpoena but aside from that , the pmc being a court
annexed body this should also be given the authority to dismiss cases
when the complainant will not come. Because under the ROC, mediation
is a part of pre trial, now under the ROC when the complainant or the
plaintif will not attend the case will be dismissed. And vice versa, if it is
the defendant or the accused who does not attend, the defendant or
accused will be declared in default and now the plainrtiff or complainant
can present evidence ex parte. So that should be extended to pmc
because mediation as what ive said mediation process is a part of
pretrial.
Also, the court would only Supreme Courthedule only one sitting for
mediation but we have to consider the education of the litigants. The
pmc should not outrightly enforce those, if ever they are given an
authority to dismiss the case or let the plaintiff prsent evidence ex parte.
They should set another setting and they should explain in their order, if
ever in the ROC the pmc will be exanded . they will give time for them
to attend in another setting. Otherwise the case will be dismissed or
otherwise if the plaintiff will present evidence ex parte . and that is
where the issuance of subpoena comes into play . because of course they
cannot be compelled to attend if there is no subpoena. And asied from
that , under the present law, the mediation process should be within 30
days only , and now if the PMC cannot comply with the 30 day period,
they will go to court and ask fron an extension of the mediation process
because now its 30 days only. But now I think the SUPREME COURT
should promulgate that, ahm, there are instances that they are given
exceptions to an extension of time in order to reach settlement of the
parties. Sometimes you know, the SUPREME COURT is sometimes
hesitant to give an extension provision because some parties will abuse
that one. That is why they limit it to 30 days. That is the wisdom of the
SUPREME COURT. What are the exceptions they should to extend the
mediation period. Because you know, with the introduction, ahm,, there
are some cases now that were not common before for example
ecommerce being extended, you go over the internet and do online
shopping. Those are cases that are mediatable. You cannot compel the
parties ,. the other party is from manila noh , or somewhere in the ph . for
example there are parties from one end of the archipelago to another
because of this online shopping, I think that 30 days is not possible for
mediation because you will to travel all along . because there are now
lots of cases involving online shopping . and its not being followed.
Sometimes… “

Informant 8
“The Supreme Court should amend the rule or make new rules. One of
which should strengthen the power of the mediators. For more than 70
years, the Supreme Court always make rules to to solve the perennial
problem of clogged dockets of courts but often to no avail. Skilled and
knowledgeable mediators. They should be skilled enough on how to
deal/explain mediation.
-Revision of the Rules. But usually it is not followed in real practice.

-Mediation, there no element of coercion and compulsion. Skill ra gud sa


mediator. Kung pwede pa.

-Incentive System, the party who showed efforts should be given reward.
It is provided in the civil code, Compromise Agreement. The one who is
hard headed to compromise should be given sanction. Purpose: To
encourage the parties to mediate.

If the mediation failed because one party did not cooperate actively, then
after trial he lost, double the cost of filing fee.”

Informant 9
“Their power should be strengthened. It may be strengthened if the PMC
given bigger funding and additional mediators.”

Informant 10
“Enhancement of skills on the legal processes in a way it will also
require them to read the case so when he meets the parties so that the
mediators would have knowledge of the facts and in that way, they can
effectively guide the parties.”
Informant 11
“Maybe as to the sanctions, the mediator should immediately
recommend sanctions, maybe recommend contempt immediately. Not
just censure or reprimand”

Informant 12
“Education. For me, always education. And while the case is still in
court. before referral to the mediator, the judge should endeavor to
explain to the parties the importance of cam while the case is being
referred to the mediator. And so that they will cooperate. Once the parties
who the significance of that procedure then I think they will be more
cooperative. And having good mediators with very good training because
mediators play a very important role in the cam.”

Informant 13
“-Mediators must be well-trained. Must have a skill to guide the party.
Not so strict but he must have ears to listen to the parties concern, sila
gud naay right. Like if the petitioner… siya gud naay right of action. On
the other hand, if the other party, mao pud ang paminawon, ako ang
aggrievd.

So kung skilled ang mediator makasabot siya . mohatag siya sya options
nila kun unsa maayo.

-Skills and training. Pwede sad maging candid siya sa parties about the
fees and period litigation would required.

-Must also have knowledge of the law. We have mediators who are
lawyers. But only a few.

- To enhance the rules. Section 10 of AM 11-6-SC-Philja…

If it will be amended, maybe its proper that mediator should be allowed


to record and maintain a record of the proceedings. Then give it to the
judge. That is one way of knowing that the mediator is effective.

How can you measure if effective ba siya sa iyang conciliation? how


does the Supreme Court or supervisor measure the mediator if recording
is not one of the functions he can do. How do you gauge that he should
still be mediator? What is the measure of appointing or retaining him?
The rate of mediation conferences he conducted? Or the success rate of
his conferences that resulted to compromise agreement

So this recording can also be tthe guage… kay mkita man didto kun unsa
iyang mga nasuwat. AM provides that“ no transtripts…xxxx” kani
siguro ang kelanagn I improve. “xx shreded and destroyed.” preserved
unta. Records should be served to court. But the problem is PMC does
not have stenographers. Kay lisod if siya ra. I don’t know if makaya kay
mostorya pa baya sya then mosuwat.

Confidentiality is not violated because it is only the court who can check
or see it.

-Attendance of the parties is a must if they already agreed to mediate.


The mediator shall recommend contempt. Dapat motunga gud sila kay
basin naay mg stipulations gusto himuon ang pikas party. Considred to
have waived ang other party …. any objection that this document should
be submitted to the court. Kaning number 10 mao ni ang maka pa
speedy sa disposition of case. This will expand ang power of mediator,
maybe you remove censure and reprimand. Immediately recommend
contempt.

The administrative matter says “based on serving their mutual interest


rather than their mutual positions xxxx” this means that the nature of his
office is not quasi-judicial. Kaya di siya allowed. The more reason dili
siya ka declare in contempt.”

Informant 14
The following should be done to fulfil the PMC’s mandate:

-During the issuance of the order referring the case to the PMC, the
judges should emphasize to the parties that appearance before the PMC
is mandatory and that sanctions will be imposed upon those who neglect
the mediation proceedings. Even if these matters are stated in the court’s
order, there is a different effect if the judge really calls the parties’
attention on how they should regard the mediation process.
-Equip the mediators with skills and continuously enhance their ability to
impart to the parties the efficiency and inexpensiveness of avoiding full
blown court battles;

-Encourage mediators to actively suggest sanctions to non-appearing


parties and those who neglect the mediation process.

-Maybe as to the sanctions, the mediator may immediately recommend


holding a party in contempt for every misbehaver or absence, that is
already deemed contemptuous. Because if only censure and reprimand, it
will not contribute to the speedy disposition of cases because the case
will be returned back to the court. The court would just require the
parties to attend on another Supreme Court scheduled setting. Then if the
party will not appear again, that is the only time that the party may be
held in contempt of court. It will defeat the purpose of mediation, the
speedy and inexpensive disposition of a case.”

APPENDIX H

COPY OF THE ADMINISTRATIVE MATTER


CONSOLIDATED AND REVISED GUIDELINES TO IMPLEMENT THE
EXPANDED COVERAGE OF COURTANNEXED MEDIATION (CAM)

A.M. No. 11-1-6-SC-PHILJA

PART TWO

COURT-ANNEXED MEDIATION (CAM)

Procedure

1. After the last pleading has been filed, the judge shall issue an order requiring the
parties to forthwith appear before the concerned Philippine Mediation Center (PMC)
Unit staff to start the process for the settlement of their dispute through mediation. On
the same date, the court shall give to the PMC a copy of the Order for mediation.

2. Individual parties are required to personally appear for mediation. In the event they
cannot do so, they can send their representatives who must be fully authorized to appear,
negotiate and enter into a compromise, through a Special Power of Attorney.

3. Corporations, partnerships, or other juridical entities shall be represented by a ranking


corporate officer fully authorized by a Board Resolution to offer, negotiate, accept,
decide and enter into a compromise agreement, without need of further approval by or
notification to the authorizing party.

4. The Order issued shall include a clear warning that sanctions may be imposed upon a
party for failure to comply therewith, in accordance with PART THREE hereof where
JDR is available failure to comply therewith, in accordance with the Section below on
sanctions.

5. On the date set in the Order, the parties shall proceed to select a mutually acceptable
mediator from among the list of accredited mediators. If no agreement is reached, the
PMC Unit Staff shall, in the presence of the parties and the Mediators, choose by lot the
one who will mediate the dispute from among the Mediators inside the Unit, ensuring a
fair and equal distribution of cases: Provided, however, that in exceptional circumstances
where special qualifications are required of the mediator, the parties shall be given an
opportunity to select from the entire list of accredited mediators.

6. The Mediator shall be considered an officer of the court while performing his duties as
such or in connection therewith.

7. The concerned Mediator shall forthwith start the mediation process, unless the parties
and mediator agree to reset the initial mediation conference, which shall not be later than
five (5) days from the original date. 8. At the initial conference, the Mediator shall
explain to both parties the mediation process, stressing the benefits of an early settlement
of their dispute based on serving their mutual interests, rather than the legal positions
taken by them.

9. With the consent of both parties, the Mediator may hold separate caucuses with each
party to determine their respective real interests in the dispute. Thereafter, another joint
conference may be held to consider various options that may resolve the dispute through
reciprocal concessions and on terms that are mutually beneficial to both the parties.

10. The Mediator shall not record in any manner the proceedings of the joint conferences
or of the separate caucuses. No transcript or minutes of mediation proceedings shall be
taken. If personal notes are taken for guidance, the notes shall be shredded and
destroyed. Should such record exists, they shall not be admissible as evidence in any
other proceedings.

11. If no settlement has been reached at the end of the period given, the case must be
returned to the referring judge.

Sanctions

The court, upon recommendation of the Mediator, may impose sanctions upon a party
who fails to appear before the Philippine Mediation Center (PMC) Unit as directed by
the referring judge, or upon any person who engages in abusive conduct during
mediation proceedings, as provided for in the Rules of Court as part of the Pre-Trial and
other issuances of the Supreme Court, including, but not limited to censure, reprimand,
contempt, requiring the absent party to reimburse the appearing party his costs, including
attorney’s fees for that day up to treble such costs, payable on or before the date of the
re-scheduled setting. Sanctions may also be imposed by the referring judge upon his own
initiative or upon motion of the interested party.

Upon justifiable cause duly proved in the hearing called on the motion to reconsider filed
by the absent party, concurred in by the concerned mediator, the sanctions imposed may
be lifted or set aside in the sound discretion of the referring judge.

Duration of Mediation in the PMC

The Mediator shall have a period of not exceeding thirty (30) days to complete the
mediation process. Such period shall be computed from the date when the parties first
appeared for the initial conference as stated in the Order to appear. An extended period of
another thirty (30) days may be granted by the court, upon motion filed by the Mediator,
with the conformity of the parties.

Suspension of periods
The period during which the case is undergoing mediation shall be excluded from the
regular and mandatory periods for trial and rendition of judgment in ordinary cases and
in cases under summary proceedings.

Settlement

If full settlement of the dispute is reached, the parties, assisted by their respective
counsels, shall draft the compromise agreement which shall be submitted to the court for
judgment upon compromise or other appropriate action. Where compliance is forthwith
made, the parties shall instead submit a satisfaction of claims or a mutual withdrawal of
the case and, thereafter, the court shall enter an order dismissing the case. If partial
settlement is reached, the parties shall, with the assistance of counsel, submit the terms
thereof for the appropriate action of the court, without waiting for resolution of the
unsettled part. In relation to the unsettled part of the dispute, the court shall proceed to
conduct JDR proceedings in accordance with PART THREE hereof where JDR is
available.

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