COURSE CODE: Criminology 6

DISPUTE RESOLUTION AND CRISES/INCIDENTS MANAGEMENT

SEGMENT I: CONFLICT

1. What is Conflict?
A conflict is an activity which takes place when conscious beings (individuals or groups)
wish to carry out mutually inconsistent acts concerning their wants, needs or obligations.
(Nicholson, M., 1992)
Conflict may also refer to a natural disagreement or struggle between people which may
be physical, or between conflicting ideas. It can either be within one person, or they can involve
several people or groups. It exists when they have incompatible goals and one or more believe
that the behavior of the other prevents them from their own goal achievement. The word
“Conflict” comes from the Latin word “conflingere” which means to come together for a battle.

2. What are Conflict Theories?

Conflict theory states that tensions and conflicts arise when resources, status, and
power are unevenly distributed between groups in society and that these conflicts become the
engine for social change. In this context, power can be understood as control of material
resources and accumulated wealth, control of politics and the institutions that make up society,
and one's social status relative to others (determined not just by class but by race, gender,
sexuality, culture, and religion, among other things). (Crossman, 2019)
Conflict theory originated in the work of Karl Marx, who focused on the causes and
consequences of class conflict between the bourgeoisie (the owners of the means of production
and the capitalists) and the proletariat (the working class and the poor). Many social theorists
have built on Marx's conflict theory to bolster it, grow it, and refine it over the years. Many
others have drawn on conflict theory to develop other types of theory within the social sciences,
including the following:
i. Feminist theory;
ii. Critical race theory;
iii. Postmodern theory and postcolonial theory;
iv. Queer theory;
v. Post-structural theory, and
vi. Theories of globalization and world systems.
So, while initially conflict theory described class conflicts specifically, it
has lent itself over the years to studies of how other kinds of conflicts, like those
premised on race, gender, sexuality, religion, culture, and nationality, among
others, are a part of contemporary social structures, and how they affect our
lives.
3. What are the Conflict Resolution Strategies?
Kenneth Thomas and Ralph Kilmann (2015) developed five conflict resolution strategies
Thomas – Kilmann Instrument or more generally known as TKI Conflict Strategies that people
 use to handle conflict, including avoiding, defeating, compromising, accommodating, and
collaborating.
The Thomas-Kilmann Instrument is designed to measure a person’s behavior in conflict
situations. “Conflict situations” are those in which the concerns of two people appear to be
incompatible.
In such conflict situations, an individual’s behavior can be described along two
dimensions: (1) assertiveness, the extent to which the person attempts to satisfy his own
concerns, and (2) cooperativeness, the extent to which the person attempts to satisfy the other
person’s concerns.

The following are the five (5) Conflict Resolution Strategies:

a. Conflict Resolution Strategy #1: Avoiding

This is unassertive and uncooperative. The person neither pursues his own concerns nor those
of the other individual. Thus, he does not deal with the conflict. Avoiding might take the form of
diplomatically sidestepping an issue, postponing an issue until a better time, or simply
withdrawing from a threatening situation.

Avoiding is when people just ignore or withdraw from the conflict. They choose this method
when the discomfort of confrontation exceeds the potential reward of resolution of the conflict.
While this might seem easy to accommodate for the facilitator, people are not really
contributing anything of value to the conversation and may be withholding worthwhile ideas.
When conflict is avoided, nothing is resolved.
b. Conflict Resolution Strategy #2: Competing
This is assertive and uncooperative. An individual pursues his own concerns at the other
person’s expense. This is a power-oriented mode in which you use whatever power seems
appropriate to win your own position—your ability to argue, your rank, or economic sanctions.
Competing means “standing up for your rights,” defending a position which you believe is
correct, or simply trying to win. Competing is used by people who go into a conflict planning to
win. Competing might work in sports or war, but it’s rarely a good strategy for group problem
solving.
c. Conflict Resolution Strategy #3: Accommodating
This is unassertive and cooperative—the complete opposite of competing. When
accommodating, the individual neglects his own concerns to satisfy the concerns of the other
person; there is an element of self-sacrifice in this mode. Accommodating might take the form
of selfless generosity or charity, obeying another person’s order when you would prefer not to,
or yielding to another’s point of view.

Also, accommodating is a strategy where one party gives in to the wishes or demands of
another. They are being cooperative but not assertive. This may appear to be a gracious way to
give in when one figures out s/he has been wrong about an argument. It is less helpful when one
party accommodates another merely to preserve harmony or to avoid disruption. Like
avoidance, it can result in unresolved issues. Too much accommodation can result in groups
 where the most assertive parties commandeer the process and take control of most
conversations.
d. Conflict Resolution Strategy #4: Collaborating
It is both assertive and cooperative—the complete opposite of avoiding. Collaborating involves
an attempt to work with others to find some solution that fully satisfies their concerns. It means
digging into an issue to pinpoint the underlying needs and wants of the two individuals.
Collaborating between two persons might take the form of exploring a disagreement to learn
from each other’s insights or trying to find a creative solution to an interpersonal problem.

A group may learn to allow each participant to contribute with the possibility of co-creating a
shared solution that everyone can support.
e. Conflict Resolution Strategy #5: Compromising
It is moderate in both assertiveness and cooperativeness. The objective is to find some
expedient, mutually acceptable solution that partially satisfies both parties. It falls intermediate
between competing and accommodating. Compromising gives up more than competing but less
than accommodating. Likewise, it addresses an issue more directly than avoiding, but does not
explore it in as much depth as collaborating. In some situations, compromising might mean
splitting the difference between the two positions, exchanging concessions, or seeking a quick
middleground solution.

The concept of this is that everyone gives up a little bit of what they want, and no one gets
everything they want. The perception of the best outcome when working by compromise is that
which “splits the difference.” Compromise is perceived as being fair, even if no one is
particularly happy with the outcome.

SEGMENT II: ALTERNATIVE DISPUTE RESOLUTION (ADR)

4. What is Republic Act No. 9285?

This Act is known as the "Alternative Dispute Resolution Act of 2004."
5. What is the policy of the State regarding Alternative Dispute Resolution (ADR)?
It is hereby declared the policy of the State to actively promote party autonomy in the
resolution of disputes or the freedom of the party to make their own arrangements to resolve
their disputes. Towards this end, the State shall encourage and actively promote the use of
Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial
justice and declog court dockets. As such, the State shall provide means for the use of ADR as an
efficient tool and an alternative procedure for the resolution of appropriate cases. Likewise, the
State shall enlist active private sector participation in the settlement of disputes through ADR.
6. Does RA 9285 limits the power of the Supreme Court to adopt any ADR System?
No. This Act shall be without prejudice to the adoption by the Supreme Court of any
ADR system, such as mediation, conciliation, arbitration, or any combination thereof as a means
of achieving speedy and efficient means of resolving cases pending before all courts in the
Philippines which shall be governed by such rules as the Supreme Court may approve from time
to time. (Sec. 2, RA 9285)
7. What is Alternative Dispute Resolution?
 Alternative Dispute Resolution System means any process or procedure used to resolve
a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer
of a government agency, as defined under RA 9285, in which a neutral third party participates to
assist in the resolution of issues, which includes arbitration, mediation, conciliation, early
neutral evaluation, mini-trial, or any combination thereof. (Sec. 3, par. a, RA 9285)
8. What is Arbitration?
Arbitration means a voluntary dispute resolution process in which one or more
arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated
pursuant to RA 9285, resolve a dispute by rendering an award. (Sec. 3, par. d, RA 9285)
Note: Award means any partial or final decision by an arbitrator in resolving the issue or
controversy.
9. Who is an Arbitrator?
Arbitrator means the person appointed to render an award, alone or with others, in a
dispute that is the subject of an arbitration agreement. (Sec. 3, par. e, RA 9285)
10. What is Early Neutral Evaluation?
This means an ADR process wherein parties and their lawyers are brought together early
in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by
an experienced, neutral person, with expertise in the subject in the substance of the dispute.
(Sec. 3, par. n, RA 9285)
11. What is Mediation?
Mediation means 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. (Sec. 3, par. q, RA 9285)
12. Who is a Mediator?
Mediator means a person who conducts mediation. (Sec. 3, par. r, RA 9285)
13. What is Mediation Party?
This means a person who participates in a mediation and whose consent is necessary to
resolve the dispute. (Sec. 3, par. s, RA 9285)
14. What is Mediation-Arbitration?
"Mediation-Arbitration" or Med-Arb is a step dispute resolution process involving both
mediation and arbitration. (Sec. 3, par. t, RA 9285)
15. What is Mini-trial?
This means a structured dispute resolution method in which the merits of a case are
argued before a panel comprising senior decision makers with or without the presence of a
neutral third person after which the parties seek a negotiated settlement (Sec. 3, par. u, RA
9285)
16. How arbitration, mediation and conciliation are different from each other?
Arbitration, mediation and conciliation are the main Alternative Dispute Resolution
Mechanism which is generally adopted by the people to resolve their disputes in an informal
manner. They try to reach a solution by settlement or negotiation with the assistance of a third
neutral party and have turned out to be an effective alternative to the litigation process.
Arbitration is a process where the parties submit their case to a neutral third party who
on the basis of discussion determine the dispute and comes to a solution.
 Mediation and conciliation both are an informal process. Whereas, arbitration is more
formal as compared to them. In mediation, the mediator generally sets out alternatives for the
parties to reach out an agreement. The main advantage of the mediation is that the settlement
is made by the parties themselves rather than a third party. It is not legally binding on the
parties. In addition, the basic motive of mediation is to provide opportunities to parties to
negotiate and come to a final solution catering the needs of both sides
Dispute resolution through conciliation involves the assistance of a neutral third party
who plays an advisory role in reaching an agreement. The process adopted by all the three are
different but, the main purpose is to resolve the dispute in a way where the interest of the
parties is balanced
17. What is ADR Provider?
"ADR Provider" means institutions or persons accredited as mediator, conciliator,
arbitrator, neutral evaluator, or any person exercising similar functions in any Alternative
Dispute Resolution system. This is without prejudice to the rights of the parties to choose
nonaccredited individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their
dispute. (Sec. 3, par. b, RA 9285)
18. What is the liability of ADR providers/Practitioners?
The ADR provides /practitioners shall have the same civil liability for acts done in the
performance of their official duties as that of public officers as provided in Section 38 (1),
Chapter 9, Book 1 of the Administrative Code of 1987, upon a clear showing of bad faith, malice
or gross negligence. (Article 1.5, IRR, RA 9285)
19. What are the cases wherein Republic Act No. 9285 does not apply?
The provisions of RA 92856 shall not apply to resolution or settlement of the following:
a) Labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor
Code of the Philippines, as amended and its Implementing Rules and Regulations;
b) The civil status of persons;
c) The validity of a marriage;
d) Any ground for legal separation;
e) The jurisdiction of courts;
f) Future legitime;
g) . Criminal liability;
h) Those which by law cannot be compromised; and
i) Those disputes referred to court-annexed mediation. (Article 1.3, IRR, RA 9285)

SEGMENT III: THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION

20. What is the Office for Alternative Dispute Resolution?

The Office for Alternative Dispute Resolution (OADR) is as an agency attached to the
Department of Justice. It shall have a Secretariat and shall be headed by an Executive Director,
who shall be appointed by the President of the Philippines, taking into consideration the
recommendation of the Secretary of Justice. (Article 2.1., IRR, RA 9285)
21. What are the powers of the OADR?
The OADR shall have the following powers:
 a) To act as appointing authority of mediators and arbitrators when the parties agree in
writing that it shall be empowered to do so;
b) To conduct seminars, symposia, conferences and other public fora and publish
proceedings of said activities and relevant materials/information that would promote,
develop and expand the use of ADR;
c) To establish an ADR library or resource center where ADR laws, rules and regulation,
jurisprudence, books, articles and other information about ADR in the Philippines and
elsewhere may be stored and accessed;
d) To establish training programs for ADR providers/practitioners, both in the public and
private sectors; and to undertake periodic and continuing training programs for
arbitration and mediation and charge fees on participants. It may do so in conjunction
with or in cooperation with the IBP, private ADR organizations, and local and foreign
government offices and agencies and international organizations;
e) To certify those who have successfully completed the regular professional training
programs provided by the OADR;
f) To charge for services rendered such as, among others, for training and certifications of
ADR providers;
g) To accept donations, grants and other assistance from local and foreign sources; and
h) To exercise such other powers as may be necessary and proper to carry into effect the
provisions of the ADR Act. (Art. 2.2., IRR, RA 9285)
22. What are the functions of OADR?
The OADR shall have the following functions:
a) To promote, develop and expand the use of ADR in the private and public sectors
through information, education and communication;
b) To monitor, study and evaluate the use of ADR by the private and public sectors for
purposes of, among others, policy formulation;
c) To recommend to Congress needful statutory changes to develop, strengthen and
improve ADR practices in accordance with international professional standards;
d) To make studies on and provide linkages for the development, implementation,
monitoring and evaluation of government and private ADR programs and secure
information about their respective administrative rules/procedures, problems
encountered and how they were resolved;
e) To compile and publish a list or roster of ADR providers/practitioners, who have
undergone training by the OADR, or by such training providers/institutions recognized
or certified by the OADR as performing functions in any ADR system. The list or roster
shall include the addresses, contact numbers, e-mail addresses, ADR service/s rendered
(e.g. arbitration, mediation) and experience in ADR of the ADR providers/practitioners;
f) To compile a list or roster of foreign or international ADR providers/practitioners. The
list or roster shall include the addresses, contact numbers, e-mail addresses, ADR
service/s rendered (e.g. arbitration, mediation) and experience in ADR of the ADR
providers/practitioners; and
g) To perform such other functions as may be assigned to it. (Art. 2.3., IRR, RA 9285)
23. State the Divisions of OADR.
The OADR shall have the following staff and service divisions, among others:
 a) Secretariat – shall provide necessary support and discharge such other functions and
duties as may be directed by the Executive Director.
b) Public information and Promotion Division – shall be charged with the dissemination of
information, the promotion of the importance and public acceptance of mediation,
conciliation, arbitration or any combination thereof and other ADR forms as a means of
achieving speedy and efficient means of resolving all disputes and to help in the
promotion, development and expansion of the use of ADR.
c) Training Division – shall be charged with the formulation of effective standards for the
training of ADR practitioners; conduct of training in accordance with such standards;
issuance of certifications of training to ADR practitioners and ADR service providers who
have undergone the professional training provided by the OADR; and the coordination
of the development, implementation, monitoring and evaluation of government and
private sector ADR programs.
d) Records and Library Division – shall be charged with the establishment and maintenance
of a central repository of ADR laws, rules and regulations, jurisprudence, books, articles,
and other information about ADR in the Philippines and elsewhere. (Art. 2.4., IRR, RA
9285)
24. What is Advisory Council? State its composition.
There is also created an Advisory Council composed of a representative from each of the
following:
a) Mediation profession;
b) Arbitration profession;
c) ADR organizations;
d) IBP; and
e) Academe

The members of the Council, who shall be appointed by the Secretary of Justice upon the
recommendation of the OADR Executive Director, shall choose a Chairman from among
themselves. (Art. 2.5., IRR, RA 9285)

25. What is the role of the Advisory Council?

The Advisory Council shall advise the Executive Director on policy, operational and other
relevant matters. The Council shall meet regularly, at least once every two (2) months, or upon
call by the Executive Director. (Art. 2.6., IRR, RA 9285)

SEGMENT IV: MEDIATION

26. What are the Terms Applicable to the Segment/Discussion on International Commercial
Arbitration? Explain
Terms and Applicable to the Chapter Mediation
1) Ad hoc Mediation means any mediation other than institutional or court-annexed.
2) . Institutional Mediation means any mediation process conducted under the rules of a
mediation institution.
3) Court-Annexed Mediation means mediation process conducted under the auspices of
the court and in accordance with Supreme Court approved guidelines, after such court
has acquired jurisdiction of the dispute.
 4) Court-Referred Mediation means mediation ordered by a court to be conducted in
accordance with the agreement of the parties when an action is prematurely
commenced in violation of such agreement.
5) . Certified Mediator means a mediator certified by the Office for ADR as having
successfully completed its regular professional training program.
6) Mediation means a voluntary process in which a mediator, selected by the disputing
party voluntary agreement regarding a dispute
7) . Mediation Party means a person who participates in a mediation and whose consent is
necessary to resolve the dispute
8) Mediator means a person who conducts mediation.
9) Non-Party Participant means a person, other than a party or mediator, who participates
in a mediation proceeding as a witness, resource person or expert. (Rule 2, par. B, IRR,
RA 9285)
27. What is the scope of application of the Implementing Rules?
These Rules apply to voluntary mediation, whether ad hoc or institutional, other than
court-annexed mediation and only in default of an agreement of the parties on the applicable
rules
These Rules shall also apply to all cases pending before an administrative or quasi-
judicial agency that are subsequently agreed upon by the parties to be referred to mediation.
(Article 3.1., IRR, RA 9285)
28. . Define Ad hoc, Institutional and Court-Annexed Mediation.
1) Ad hoc Mediation means any mediation other than institutional or court-annexed.
2) Institutional Mediation means any mediation process conducted under the rules of a
mediation institution.
3) Court-Annexed Mediation means mediation process conducted under the auspices of
the court and in accordance with Supreme Court approved guidelines, after such court
has acquired jurisdiction of the dispute.
29. What is the State policy on Mediation?
In applying and construing the provisions of these Rules, consideration must be given to
the need to promote candor of parties and mediators through confidentiality of the mediation
process, the policy of fostering prompt, economical and amicable resolution of disputes in
accordance with principles of integrity of determination by the parties and the policy that the
decision-making authority in the mediation process rests with the parties.
A party may petition a court before which an action is prematurely brought in a matter
which is the subject of a mediation agreement, if at least one party so requests, not later than
the pre-trial conference or upon the request of both parties thereafter, to refer the parties to
mediation in accordance with the agreement of the parties. (Article 3.2., IRR, RA 9285)

 SELECTION OF A MEDIATOR
30. Do parties have the right to select a Mediator?
Yes. The parties have the freedom to select a mediator. The parties may request the
Office for Alternative Dispute Resolution (OADR) to provide them list or roster or the resumes of
 its certified mediators. The OADR may be requested to inform the mediator of his/her selection.
(Article 3.3., IRR, RA 9285)
31. Is it required that a Mediator has special qualifications by background or profession?
As a Rule, ADR act does not require that a mediator shall have special qualifications by
background or profession unless the special qualifications of a mediator are required in the
mediation agreement or by the mediation parties. (Sec. 13, RA 9285)
32. May a party waive his right to participate in Mediation?
Yes, except as otherwise provided in RA 9285, a party may designate a lawyer or any
other person to provide assistance in the mediation. A lawyer of this right shall be made in
writing by the party waiving it. A waiver of participation or legal representation may be
rescinded any time. (Sec. 14, RA 9285)
Note: Rescind means to revoke or cancel.
33. When a Mediator be replaced?
If the mediator selected is unable to act as such for any reason, the parties may, upon
being informed of such fact, select another mediator. (Article 3.4., IRR, RA 9285)
34. What are the grounds wherein a Mediator may refuse or withdraw such?
A mediator may refuse from acting as such, withdraw or may be compelled to withdraw
from mediator proceedings under the following circumstances:
a) If any of the parties so requests the mediator to withdraw;
b) The mediator does not have the qualifications, training and experience to
enable him/her to meet the reasonable expectations of the parties;
c) Where the mediator's impartially is in question;
d) If continuation of the process would violate any ethical standards;
e) If the safety of any of the parties would be jeopardized;
f) If the mediator is unable to provide effective services;
g) In case of conflict of interest; and
h) In any of the following instances, if the mediator is satisfied that:
1) One or more of the parties is/are not acting in good faith;
2) The parties' agreement would be illegal or involve the commission of a
crime;
3) Continuing the dispute resolution would give rise to an appearance of
impropriety;
4) Continuing with the process would cause significant harm to a non-
participating person or to the public; or
5) Continuing discussion would not be in the best interest of the parties,
their minor children or the dispute resolution process. (Article 3.5., IRR,
RA 9285)
 ETHICAL CONDUCT OF A MEDIATOR
35. Explain the following terms as Ethical Conduct of a Mediator:
1) Competence
It is not required that a mediator shall have special qualifications by background
or profession unless the special qualifications of a mediator shall:
a) maintain the continually upgrade his/her professional competence in
mediation skills;
 b) ensure that his/her qualifications, training and experience are known to
and accepted by the parties; and
c) serve only when his/her qualifications, training and experience enable
him/her to meet the reasonable expectations of the parties and shall
not hold himself/herself out or give the impression that he/she does not
have

Upon the request of a mediation party, an individual who is requested

to serve as mediator shall disclose his/her qualifications to mediate a
dispute. (Article 3.5., IRR, RA 9285)

2) Impartially
A mediator shall maintain impartiality.
a) Before accepting a mediation, an individual who is requested to serve as a
mediator shall:
 make an inquiry that is reasonable under the circumstances to
determine whether there are known facts that a reasonable individual
would consider likely to affect the impartiality of the mediator, including
a financial or personal interest in the outcome of the mediation and any
existing or past relationship with a party of foreseeable participant in
the mediation; and
 disclose to the mediation parties any such fact known or learned as
soon as practical before accepting a mediation.
b) If a mediator learns any fact described in paragraph (a) of this Article after
accepting a mediation, the mediator shall disclose it as soon as practicable to
the mediation parties. (Article 3.7., IRR, RA 9285)
3) Confidentiality
A mediator shall keep in utmost confidence all confidential information
obtained in the course of the mediation process.
a) A mediator shall discuss issues of confidentiality and the extent of
confidentiality provided in any private sessions or caucuses that the mediator
holds with a party. (Article 3.8., IRR, RA 9285)
4) Consent and Self-Determination
a) A mediator shall make reasonable efforts to ensure that each party understands
the nature and character of the mediation proceeding including private
caucuses, the issues, the available options, the alternatives to non-settlement,
and that each party is free and able to make whatever choices he/she desires
regarding participation in mediation generally and regarding specific settlement
options.
If a mediator believes that a party, who is not represented by counsel, is
unable to understand, or fully participate, the mediation proceedings
for any reason, a mediator may either:
 limit the scope of the mediation proceedings in a manner
consistent with the party's ability to participate, and/or
 recommend that the party obtain appropriate assistance in
order to continue with the process; or
 terminate the mediation proceedings
b) A mediator shall recognize and put in mind that the primary responsibility of
resolving a dispute and the shaping of a voluntary and uncoerced settlement
rests with the parties. (Article 3.9., IRR, RA 9285
5) Separation of Mediation from Counseling and Legal Advice
a) Except in evaluative mediation or when the parties so request, a mediator shall:
 refrain from giving legal or technical advice and otherwise engaging in
counseling or advocacy; and
 abstain from expressing his/her personal opinion on the rights and
duties of the parties and the merits of any proposal made.
b) Where appropriate and where either or both parties are not represented by
counsel, a mediator shall;
 recommend that the parties seek outside professional advice to help
them make informed decision and to understand the implication of any
proposal; and
 suggest that the parties seek independent legal and/or technical advice
before a settlement agreement is signed.
c) without the consent of al parties, and for a reasonable time under the particular
circumstance, a mediator who also practices another profession shall not
establish a professional relationship in that other profession with one of the
parties, or any person or entity, in a substantially and factually related matter.
(Article 3.10., IRR, RA 9285)
6) Charging of Fees.
With respect to charging of fees:
a) A mediator shall fully disclose and explain to the parties the basis of cost, fees
and charges.
b) The mediator who withdraws from the mediation shall return to the parties any
unearned fee and unused deposit.
c) A mediator shall not enter into a fee agreement, which is contingent upon the
results of the mediation or the amount of the settlement. (Article 3.11., IRR, RA
9285)
7) `Promotion of Respect and Control of Abuse of Process.
The mediator shall encourage mutual respect between the parties, and shall
take reasonable steps, subject to the principle of self-determination, to limit abuses of
the mediation process. (Article 3.12., IRR, RA 9285)
8) Solicitation or Acceptance of any Gift.
No mediator or any member of a mediator’s immediate family or his/her agent
shall request, solicit, receive or accept any gift or any type of compensation other than
the agreed fee and expenses in connection with any matter coming before the
mediator. (Article 3.13., IRR, RA 9285)

 ROLE OF PARTIES AND THEIR COUNSELS IN MEDIATION

36. May a party designate a lawyer to assist him in Mediation?
Yes, except as otherwise provided by the ADR Act or by their Rules, a party may
designate a lawyer or any other person to provide assistance in the mediation. A waiver of this
right shall be made in writing by the party waiving it. A waiver of participation or legal
representation may be rescinded at any time. (Article 3.14., IRR, RA 9285)
37. Enumerate the Roles of a Counsel in Mediation proceedings
a) The lawyer shall view his/her role in the mediation as a collaborator with the
other lawyer in working together toward the common goal of helping their
clients resolve their differences to their mutual advantage
b) The lawyer shall encourage and assist his/her client to actively participate in
positive discussions and cooperate in crafting an agreement to resolve their
dispute
c) The lawyer must assist his/her client to comprehend and appreciate the
mediation process and its benefits, as well as the client’s greater personal
responsibility for the success of mediation in resolving the dispute
d) In preparing for participation in mediation, the lawyer shall confer and discuss
with his/her client the following:
 The mediation process as essentially a negotiation between the
parties assisted by their respective lawyers, and facilitated by a
mediator, stressing it its difference from litigation, its
advantages and benefits, the clients heightened role in
mediation and responsibility for its success and explaining the
role of the lawyer in mediation proceedings,
 The substance of the upcoming mediation such as;
o The substantive issues involved in the dispute and their prioritization in
terms of importance to his/her client’s real interests and needs.
o The study of other party’s position in relation to the issues with a view
to understanding the underlying interests, fears, concerns and needs;
o The information or facts to be gathered or sought from the other side or
to be exchanged that are necessary for informed decision-making;
o The possible options for settlement but stressing the need to be open-
minded about other possibilities; and
o The best, worst and most likely alternative to a non-negotiated
settlement. (Article 3.15., IRR, RA 9285)
38. What other matters a Counsel must do to assist in the Mediation?
To assist in the Mediation, the lawyer:
a) shall give support to the mediator so that his/her client will fully understand the
rules and processes of mediation;
b) shall impress upon his/her client the importance of speaking for himself/herself
and taking responsibility for making decisions during the negotiations within the
mediation process.;
c) may ask for a recess in order to give advice or suggestions to his/her client in
private, if he/she perceives that his/her client is unable to bargain effectively;
and
 d) shall assist his/her client and the mediator put in writing the terms of the
settlement agreement that the parties have entered into. That lawyers shall see
to it that the terms of the settlement agreement are not contrary to law,
morals, good customs, public order or public policy. (Article 3.16., IRR, RA 9285)
 CONDUCT OF MEDIATION
39. What are the articles to be considered in the conduct of Mediation?
The articles to be considered in the conduct of Mediation are the following:
a) The mediator shall not make untruthful or exaggerated claims about the dispute
resolution process, its costs and benefits, its outcome or the mediator’s
qualifications and abilities during the entire mediation process.
b) The mediator shall held the parties reach a satisfactory resolution to their
dispute but has no authority to impose a settlement on the parties.
c) The parties shall personally appear for mediation and may be assisted by a
lawyer. A party maybe represented by an agent who must have full authority to
negotiate and settle the dispute.
d) The mediation process shall, in general, consists of the following stages:
 opening statement of the mediator
 individual narration by the parties;
 exchange by the parties;
 summary of issues;
 generation and evaluation of options; and
 closure
e) The mediation proceeding shall be held in private. Person, other than the
parties, their representatives and mediator, may attend only with the consent of
all the parties,
f) the mediation shall be closed:
 by the execution of a settlement agreement by the parties;
 by the withdrawal of any party from mediation; and
 by the written declaration of the mediator that any further effort at
mediation would not be helpful. (Article 3.17., IRR, RA 9285)
40. Where is the place of Mediation?
The parties are free to agree on the place of mediation. Failing such agreement, the
place of mediation shall be any place convenient and appropriate to all parties. (Article 3.18.,
IRR, RA 9285)
 EFFECT OF AGREEMENT TO SUBMIT A DISPUTE TO MEDIATION UNDER INSTITUTIONAL RULES
41. What does an agreement to submit a dispute to mediator by an institution include?
An agreement to submit a dispute to mediation by an institution shall include an
agreement to be bound by the internal mediation and administrative policies of such institution.
Further, an agreement to submit a dispute to mediation under institutional mediation rules shall
be deemed to include an agreement to have such rules govern the mediation of the dispute and
for the mediator, the parties, their respective counsels and nonparty participants to abide by
such rules. (Article 3.19., IRR, RA 9285)

 ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT

42. What are the operative principles to guide Mediation?
The mediation shall be guided by the following operative principles:
a) A settlement agreement following successful mediation shall be prepared by the
parties with the assistance of their respective counsels. If any, and by the
mediator. The parties and their respective counsels shall endeavor to make the
terms and condition of the settlement agreement complete and to make
adequate provision for the contingency of breach to avoid conflicting
interpretations of the agreement.
b) The parties and their respective counsels, if any, shall sign the settlement
agreement. The mediator shall certify that he/she explained the contents of the
settlement agreement to the parties in a language known to them.
c) If the parties agree, the settlement agreement may be jointly deposited by the
parties or deposited by one party with prior notice to the other party/ties with
the Clerk of Court of the Regional Trial Court (a) where the principal place of
business in the Philippines of any of the parties is located; (b) if any of the
parties is an individual, where any of those individuals resides; or (c) in the
National Capital Judicial Region. Where there is a need to enforce the
settlement agreement, a petition may be filed by any of the parties with the
same court in which case, the court shall proceed summarily to hear the
petition, in accordance with the Special ADR Rules.
d) The parties may agree in the settlement agreement that the mediator shall
become a sole arbitrator for the dispute and shall treat the settlement
agreement as an arbitral award which shall be subject to enforcement under
Republic Act No. 876, otherwise know as "The Arbitration Law",
notwithstanding the provisions of Executive Order No. 1008, s. 1985, other wise
known as the "Construction Industry Arbitration Law" for mediated disputes
outside the Construction Industry Arbitration Commission. (Article 3.20., IRR, RA
9285)
 CONFIDENTIALITY OF INFORMATION
43. . What are the principles and guidelines on the information obtained through Mediation?
Information obtained through mediation proceedings shall be subject to the following principles
and guidelines:
a) Information obtained through mediation shall be privileged and confidential.
b) A party, mediator, or non-party participant may refuse to disclose and may
prevent any other person from disclosing a confidential information.
c) Confidential information shall not be subject to discovery and shall be
inadmissible in any adversarial proceeding, whether judicial or quasijudicial.
However, evidence or information that is otherwise admissible or subject to
discovery does not become inadmissible or protected from discovery solely by
reason of its use in a mediation.
d) In such an adversarial proceeding, the following persons involved or previously
involved in a mediation may not be compelled to disclosed confidential
information obtained during the mediation:
 the parties to the dispute;
  the mediator or mediators;
 the counsel for the parties;
 the non-party participants
 any person hired or engaged in connection with the mediation as
secretary, stenographer, clerk or assistant; and
 any other person who obtains or possesses confidential information by
reason of his/her profession.
e) The protections of the ADR Act shall continue to apply even if a mediator is
found to have failed to act impartially
f) A mediator may not be called to testify to provide confidential information
gathered in mediation. A mediator who is wrongfully subpoenaed shall be
reimbursed the full cost of his/her attorney’s fees and related expenses. (Article
3.21., IRR, RA 9285)
44. May the privilege of confidentiality of information be waived?
Yes, under the following circumstances, a privilege of confidentiality of information is deemed
waived:
a) A privilege arising from the confidentiality of information may be waived in a
record or orally during a proceeding by the mediator and the mediation parties.
b) With the consent of the mediation parties, a privilege arising from the
confidentiality of information may likewise be waived by a non-party participant
if the information is provided by such non-party participant.
c) A person who discloses confidential information shall be precluded from
asserting the privilege under Article 3.21 (Confidentiality of Information) to bar
disclosure of the rest of the information necessary to a complete understanding
of the previously disclosed information. If a person suffers loss or damage as a
result of the disclosure of the confidential information, he/she shall be entitled
to damages in a judicial proceeding against the person who made the
disclosure.
d) A person who discloses or makes a representation about a mediation is
precluded from asserting the privilege mentioned in Article 3.21 to the extent
that the communication prejudices another person in the proceeding and it is
necessary for the person prejudiced to respond to the representation or
disclosure. (Article 3.22., IRR, RA 9285)
45. What are the exceptions to the privilege of confidentiality of information?
a) There is no privilege against disclosure under Article 3.21 in the following
instances:
 in an agreement evidenced by a record authenticated by all parties to
the agreement;
 available to the public or made during a session of a mediation which is
open, or is required by law to be open, to the public;
 a threat or statement of a plan to inflict bodily injury or commit a crime
of violence;
 intentionally used to plan a crime, attempt to commit, or commit a
crime, or conceal an ongoing crime or criminal activity.
  sought or offered to prove or disprove abuse, neglect, abandonment or
exploitation in a proceeding in which a public agency is protecting the
interest of an individual protected by law; but this exception does not
apply where a child protection matter is referred to mediation by a
court or where a public agency participates in the child protection
mediation;
 sought or offered to prove or disapprove a claim or complaint of
professional misconduct or malpractice filed against a party, non-party
participant, or representative of a party based on conduct occurring
during a mediation.
b) If a court or administrative agency finds, after a hearing in camera, that the
party seeking discovery of the proponent of the evidence has shown that the
evidence is not otherwise available, that there is a need for the evidence that
substantially outweighs the interest in protecting confidentially, and the
mediation communication is sought or offered in:
 a court proceeding involving a crime or felony; or
 a proceeding to prove a claim or defense that under the law is sufficient
to reform or avoid a liability on a contract arising out of the mediation.
c) A mediator may not be compelled to provide evidence of a mediation
communication or testify in such proceeding
d) If a mediation communication is not privileged under an exception in sub-
section (a) or (b) hereof, only the portion of the communication necessary for
the application of the exception for non-disclosure may be admitted. The
admission of a particular evidence for the limited purpose of an exception does
not render that evidence, or any other mediation communication, admissible
for any other purpose. (Article 3.23., IRR, RA 9285)[;
46. May a Mediator be allowed to make a report to communicate matters regarding Mediation?
As a Rule, NO. A mediator may not make a report, assessment, evaluation,
recommendation, finding or other communication regarding a mediation to a court or agency or
other authority that may make a ruling on a dispute that is the subject of a mediation, except:
a) to state that the mediation occurred or has terminated, or where a settlement
was reached; or
b) as permitted to be disclosed under Article 3.23 (Exception to the Privilege of
Confidentiality of Information). The parties may, by an agreement in writing,
stipulate that the settlement agreement shall be sealed and not disclosed to any
third party including the court. Such stipulation, however, shall not apply to a
proceeding to enforce or set aside the settlement agreement. (Article 3.24., IRR,
RA 9285)
 FEES AND COST OF MEDIATION
47. In Ad Hoc Mediation, what are the rules on Fees and Cost?
In ad hoc mediation, the parties are free to make their own arrangement as to
mediation cost and fees. In default thereof, the schedule of cost and fees to be approved by the
OADR shall be followed. (Article 3.25., IRR, RA 9285)
48. In Institutional Mediation, what does mediation cost include?
 In institutional mediation, mediation cost shall include the administrative charges of the
mediation institution under which the parties have agreed to be bound, mediator’s fees and
associated expenses, if any. In default of agreement of the parties as to the amount and manner
of payment of mediation’s cost and fees, the same shall be determined in accordance with the
applicable internal rules of the mediation service providers under whose rules the mediation is
conducted. (Article 3.26., IRR, RA 9285)
49. What are the factors in determining mediation fee?
A mediation service provider may determine such mediation fee as is reasonable taking
into consideration the following factors, among others:
a) A mediation service provider may determine such mediation fee as is
reasonable taking into consideration the following factors, among others:
b) the number of hours spent in mediation; and
c) the training, experience and stature of mediators. (Article 3.26., IRR, RA 9285)

SEGMENT V: INTERNATIONAL COMMERCIAL ARBITRATION

50. What are the Terms Applicable to the Segment/Discussion on International Commercial
Arbitration? Explain.
Terms Applicable to the Chapter on International Commercial Arbitration:
1) Appointing Authority as used in the Model Law shall mean the person or institution
named in the arbitration agreement as the appointing authority; or the regular
arbitration institution under whose rules the arbitration is agreed to be conducted.
Where the parties have agreed to submit their dispute to institutional arbitration rules
and unless they have agreed to a different procedure, they shall be deemed to have
agreed to the procedure under such arbitration rules for the selection and appointment
of arbitrators. In ad hoc arbitration, the default appointment of an arbitrator shall be
made by the National President of the Integrated Bar of the Philippines (IBP) or his /her
duly authorized representative.
2) . Arbitral Tribunal (under the Model Law) means a sole arbitrator or a panel of
arbitrators.
3) Arbitration means any arbitration whether or not administered by a permanent
arbitration institution
4) Commercial Arbitration means an arbitration that covers matters arising from all
relationships of a commercial nature, whether contractual or not. Relationships of a
commercial nature include, but are not limited to, the following commercial
transactions: any trade transaction for the supply or exchange of goods or services;
distribution agreements; construction of works; commercial representation or agency;
factoring; leasing; consulting; engineering; licensing; investment; financing; banking;
insurance; joint venture and other forms of industrial or business cooperation; carriage
of goods or passengers by air, sea rail or road.
5) Convention Award means a foreign arbitral award in a Convention State.
6) Convention State means a state that is a member of the New York Convention
7) Court (under the Model Law) means a body or organ of the judicial system of the
Philippines (i.e., the Regional Trial Court, Court of Appeals and Supreme Court).
 8) International Arbitration means an arbitration where:
a) the parties to an arbitration agreement have, at the time of the conclusion of
that agreement, their places of business in different states; or
b) one of the following places is situated outside the Philippines in which the
parties have their places of business:
 the place of arbitration if determined in, or pursuant to , the arbitration
agreement;
 any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with the subject matter of
the dispute is most closely connected; or
c) the parties have expressly agreed that the subject matter of the arbitration
agreement relates to more than one country.

For this purpose:

(a) if a party has more than one place of business, the place of business is that which has the closest
relationship to the arbitration agreement;

(b) if a party does not have a place of business, reference is to be made to his/her habitual residence.

9) New York Convention means the United Nations Convention of the Recognition and
Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by the Philippine
Senate under Senate Resolution No.71.
10) Non-Convention Award means a foreign arbitral ward made in a state, which is not a
Convention State.
11) Non-Convention State means a state that is not a member of the New York Convention.
(Rule 2, par. C, IRR, RA 9285)
51. What is the scope of application of Chapter 4 of the IRR of RA 9285 on International
Commercial Arbitration?
a) It applies to international commercial arbitration, subject to any agreement in
force between the Philippines and other state or states.
b) It applies only if the place or seat of arbitration is the Philippines and in default
of any agreement of the parties on the applicable rules.
c) It shall not affect any other law of the Philippines by virtue of which certain
disputes may not be submitted to arbitration or may be submitted to arbitration
only according to provisions other than those of the ADR Act. (Article 4.1., IRR,
RA 9285)
52. Cite the Rules on International Commercial Arbitration.
The following are the rules of interpretation in international commercial arbitration:
a) International commercial arbitration shall be governed by the Model Law on
International Commercial Arbitration
b) In interpreting this Chapter, regard shall be had to the international origin of the
Model Law and to the need for uniformity in its interpretation. Resort may be
made to the travaux preparatoires and the Report of the Secretary-General of
the United Nations Commission on International Trade Law dated March 1985
 entitled, "International Commercial Arbitration: Analytical Commentary on Draft
Text identified by reference number A/CN. 9/264"
c) Moreover, in interpreting this Chapter, the court shall have due regard to the
policy of the law in favor of arbitration and the policy of the Philippines to
actively promote party autonomy in the resolution of disputes or the freedom
of the parties to make their own arrangement to resolve their dispute.
d) Where a provision of this Chapter, except the Rules applicable to the substance
of the dispute, leaves the parties free to determine a certain issue, such
freedom includes the right of the parties to authorize a third party, including an
institution, to make that determination.
e) Where a provision of this Chapter refers to the fact that the parties have agreed
or that they may agree or in any other way refers to an agreement of the
parties, such agreement includes any arbitration rules referred to in that
agreement.
f) Where a provision of this Chapter, other than in paragraph (a) of Article 4.25
(Default of a Party) and paragraphs (b) (i) of Article 4.32 (Termination of
Proceedings), refers to a claim, it also applies to a counter-claim, and where it
refers to a defense, it also applies to a defense to such counter-claim. (Article
4.2., IRR, RA 9285)
53. When is a written communication deemed received?
a) Unless otherwise agreed by the parties:
 any written communication is deemed to have been received if it is
delivered to the addressee personally or at his/her place of business,
habitual residence or mailing address; if none of these can be found
after making a reasonable inquiry, a written communication is deemed
to have been received if it is sent to the addressee’s last known place of
business, habitual residence or mailing address by registered letter or
any other means which provides a record of the attempt to deliver it;
 the communication is deemed to have been received on the day it is so
delivered.
b) The provisions of this Article do not apply to communications in court
proceedings, which shall be governed by the Rules of Court. (Article 4.3., IRR, RA
9285)
54. May the right to object be waived?
Yes. The right to object may be waived. Any party who knows that any provision of this Chapter
from which the parties may derogate or any requirement under the arbitration agreement has
not been complied with and yet proceeds with the arbitration without stating the objections for
such non-compliance without undue delay or if a time limit is provided therefor, within such
period of time, shall be deemed to have waived the right to object. (Article 4.4., IRR, RA 9285)
55. What is the extent of Court intervention?
In matters governed by this Chapter, no court shall intervene except where so provided
in the ADR Act. Resort to Philippine courts for matters within the scope of the ADR Act shall be
governed by the Special ADR Rules. (Article 4.5., IRR, RA 9285)
56. What other functions must be performed by the appointing authority?
 a) The functions referred to in paragraphs (c) and (d) of Article 4.11 (Appointment
of Arbitrators) and paragraph (c) of Article 4.13 (Challenge Procedure) and
paragraph (a) of Article 4.14 (Failure or Impossibility to Act) shall be performed
by the appointing authority as defined in Article 1.6 C1, unless the latter shall
fail or refuse to act within thirty (30) days from receipt of the request in which
case the applicant may renew the application with the court. The appointment
of an arbitrator is not subject to appeal or motion for reconsideration.
b) The functions referred to in paragraph (c) of Article 4.16 (c) (Competence of
Arbitral Tribunal to Rule on its Jurisdiction), second paragraph of Article 4.34
(Application for Setting Aside an Exclusive Recourse Against Arbitral Award),
Article 4.35 (Recognition and Enforcement), Article 4.38 (Venue and
Jurisdiction), shall be performed by the appropriate Regional Trial Court
c) A Court may not refuse to grant, implement or enforce a petition for an interim
measure, including those provided for in Article 4.9 (Arbitration Agreement and
Interim Measures by Court), Article 4. 11 (Appointment of Arbitrators), Article
4.13 (Challenge Procedure), Article 4,27 (Court Assistance in Taking Evidence),
on the sole ground that the Petition is merely an ancillary relief and the principal
action is pending with the arbitral tribunal. (Article 4.6., IRR, RA 9285)
 ARBITRATION AGREEMENT
57. Explain the form of an Arbitration Agreement
The Arbitration agreement, as defined in Articles 1.6 A4, shall be in writing. An agreement is in
writing if it is contained in a document signed by the parties or in an exchange of letters, telex,
telegrams or other means of telecommunication which provide a record of the agreement, or in
an exchange of statements of claim and defense in which the existence of an agreement, or in
an exchange of statements of claim and defense in which the existence of an agreement is
alleged by one party and not denied by another. The reference in a contract to a document
containing an arbitration clause constitutes an arbitration agreement provided that the
contracts is writing and the reference is such as to make that clause part of the contract. (Article
4.7., IRR, RA 9285) 58.
58. What are the rules when a substantive claim is before a court?
The following are the rules when a substantive claim is before the court:
a) A court before which an action is brought in a matter which is the subject of an
arbitration agreement shall, if at least one party so requests of both parties
thereafter, refer the parties to arbitration unless it finds that the arbitration
agreement is null and void, inoperative or incapable of being performed.
b) Where an action referred to in the previous paragraph has been brought ,
arbitral proceedings may nevertheless be commenced or continued, and an
award may be made, while the issue is pending before the court
c) Where the action is commenced by or against multiple parties, one or more of
whom are parties to an arbitration agreement, the court shall refer to
arbitration those parties who are bound by the arbitration agreement although
the civil action may continue as to those who are not bound by such arbitration
agreement. (Article 4.8., IRR, RA 9285)
59. May a party request for an interim measure of protection before or during the arbitral
proceedings?
Yes. It is not incompatible with an arbitration agreement for a party to request from a court,
before the constitution of the arbitral tribunal or during arbitral proceedings, an interim
measure of protection and for a court to grant such measure. To the extent that the arbitral
tribunal has no power to act or is unable to act effectively, a request for interim measure of
protection, or modification thereof as provided for, and in the manner indicated in Article 4.17
(Power of Tribunal to Order Interim Measures ), may be made with the court. The rules of
interim or provisional relief provided for in paragraph ( c ) of Article 4.17 of these Rules shall be
observed. A party may bring a petition under this Article before the court in accordance with the
Rules of Court or the Special ADR Rules. (Article 4.9., IRR, RA 9285)
 COMPOSITION OF ARBITRAL TRIBUNAL
60. How many Arbitrators may the parties agree upon?
The parties are free to determine the number of arbitrators Failing such determination, the
number of arbitrators shall be three (3). (Article 4.10., IRR, RA 9285)
61. Explain how Arbitrators are appointed.
The appointment of arbitrators is governed by the following procedures:
a) No person shall be produced by reason of his/her nationality from acting as an
arbitrator, unless otherwise agreed by the parties
b) The parties are free to agree on a procedure of appointing the arbitrator or
arbitrators, subject to provisions of paragraphs (d) and (e) of this Article
c) Failing such agreement:
 n an arbitration with three (3 ) arbitrators, each party shall appoint one
arbitrator, and the two (2) arbitrators thus appointed shall appoint the
third arbitrator; if any party fails to appoint the arbitrator within thirty
(30) days of receipt of a request to do so from the other party, or if the
two (2) arbitrators fail to agree on the third arbitrator within thirty days
(30) days of their appointment shall be made, upon request of a party,
by the appointing authority;
 in an arbitration with a sole arbitrator, if the parties are unable to agree
on the arbitrator, he/she shall be appointed, upon request of a party, by
the appointing authority.
d) Where, under an appointment procedure agreed upon the parties,
 a party fails to act as required under such procedure, or
 the parties, or two arbitrators, are unable to reach an agreement
expected of them under such procedure, or
 a third party, including an institution, fails to perform any function
entrusted to it under such procedure,

Any party may request the appointing authority to take the necessary
measure to appoint an arbitrator, unless the agreement on the
appointment procedure provides other means for securing the
appointment.
 A decision on a matter entrusted by paragraphs (c) and (d) of this to the
appointing authority shall be immediate executory and not be subject to a
motion for reconsideration or appeal. The appointing authority shall have in
appointing an arbitrator, due regard to any qualifications required of the
arbitrator by the agreement of the parties and to such considerations as are
likely to secure the appointment of an independent and impartial arbitrator
and, in the case of a sole or third arbitrator , shall take into account as well
the advisability of appointing an arbitrator of a nationality other than the
Rules of Court of the Special ADR Rules. (Article 4.11., IRR, RA 9285)

62. What are the grounds to challenge an Arbitrator?

The grounds for challenge are as follows:
a) When a person is approached in connection with his/her possible appointment
as an arbitrator, he/she impartiality or independence. An arbitrator, from the
time of his/her appointment and throughout the arbitral proceedings shall,
without delay, disclose any such circumstance to the parties unless they have
already been informed of them him/her. An arbitrator may be challenged only if
circumstances exist that give rise to justifiable doubts as to his/her impartiality
or independence, or if he/she does not possess qualifications agreed to by the
parties. A party may challenge an arbitrator appointed by him/her, or in whose
appointment he/she has participated, only for reasons of which he/she
becomes aware after the appointment has been made. (Article 4.12., IRR, RA
9285)
63. What is the procedure in challenging an Arbitrator?
The challenge procedure is as follows:
a) The parties are free to agree on a procedure for challenging an arbitrator,
subject to the provisions of this Article
b) Failing such agreement, a party who intends to challenge an arbitrator shall,
within fifteen (15) days after becoming aware of the constitution of the arbitral
tribunal or after becoming aware of any circumstances referred to in paragraph
(b) of Article 4.12 (Grounds for Challenge,) send a written statement of the
reasons for the challenge to the arbitral tribunal. Unless the challenged
arbitrator withdraws from his/her office or the other party agrees to the
challenged arbitrator withdraws from his/her office or the party agrees to the
challenge, the arbitral tribunal shall decide on the challenge.
c) If a challenge under any procedure agreed upon by the parties or under the
procedure of paragraph (b) of this Article is not successful, the challenging party
may request the appointing authority, within thirty (30) days after having
received notice of the decision rejecting the challenge, to decide on the
challenge, which decision shall be immediately executory and not subject to
motion for reconsideration or appeal. While such a request is pending, the
arbitral tribunal, including the challenged arbitrator, may continue the arbitral
proceedings and make an award.
 A party may bring a petition under this Article before the court in accordance with
the Rules of Court or the Special ADR Rules. (Article 4.13., IRR, RA 9285)

64. What is the consequence if there is failure or impossibility to act as an Arbitrator?

a) If an arbitrator becomes de jure or de facto unable to perform his/her functions
or for other reasons fails to act without undue delay, his/her mandate
terminates if he/she withdraws from his/her office or if the parties agree on the
termination. Otherwise, if the controversy remains concerning any of these
grounds, any party may request the appointing authority to decide on the
termination of the mandate, which decision shall be immediately executory and
not subject for motion for reconsideration or appeal.I
b) If, under this Article or paragraph (b) of Article 4.13 (Challenge Procedure), an
arbitrator withdraws from his/her office or a party agrees for termination of the
mandate of an arbitrator, this does not imply acceptance of the validity of any
ground referred to in this Article or in paragraph (b) of Article 4.12 (Grounds for
Challenge). (Article 4.14., IRR, RA 9285)
65. What is the consequence if the mandate of an Arbitrator is terminated?
Where the mandate of an arbitrator terminates under Articles 4.13 (Challenge Procedure) and
4.14 (Failure or Impossibility to Act) or because of his/her withdrawal from office for any other
reason or because of the revocation of his/her mandate, a substitute arbitrator shall be
appointed according to the rules that were applicable to the appointment of the arbitrator
being replaced. (Article 4.15., IRR, RA 9285)

 JURISDICTION OF ARBITRAL TRIBUNAL

66. Discuss the competence of Arbitral Tribunal to Rule on jurisdiction.
a) The arbitral tribunal may rule on its own jurisdiction, including any objections
with respect to the existence or validity of the arbitration agreement or any
condition precedent to the filing of the request for arbitration. For that purpose,
an arbitration clause, which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract. A decision by the
arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
b) A plea that the arbitral tribunal does not have jurisdiction shall be raised not
later than the submission of the statement of defense (I.e., in an Answer or
Motion to Dismiss). A party is not precluded from raising such plea by the fact
that he/she has appointed, or participated in the appointment of, an arbitrator.
A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of its authority is
raised during the arbitral proceedings. The arbitral tribunal may, in either case,
admit a later plea if it considers the delay justified.
c) The arbitral tribunal may rule on a plea referred to in paragraph (b) of this
Article either as a preliminary question or in an award on the merits. If the
arbitral tribunal rules as a preliminary question that it has jurisdiction, any party
may request, within thirty (30) days after having received notice of that ruling,
the Regional Trial Court to decide the matter, which decision shall be
 immediately executory and not subject to motion for reconsideration or appeal.
While such a request is pending, the arbitral tribunal may contribute the arbitral
proceedings and make an award. (Article 4.16., IRR, RA 9285)
67. Does the Arbitral tribunal have the power to order interim measures?
a) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request
of the party, order any party to take such interim measures of protection as the
arbitral tribunal may consider necessary in respect of the subject to matter of
the dispute following paragraph (c) of this Article. Such interim measures may
include, but shall not be limited to, preliminary injunction directed against a
party, appointment of receivers, or detention, preservation, inspection of
property that is the subject of the dispute in arbitration.
b) After constitution of the arbitral tribunal, and during arbitral proceeding, a
request for interim measures of protection, or modification thereof shall be
made with the arbitral tribunal. The arbitral tribunal is deemed constituted
when the sole arbitrator or the third arbitrator, who has been nominated, has
accepted the nomination and written communication of said nomination and
acceptance has been received by the party making the request.
c) The following rules on interim or provisional relief shall be observed:
 Any party may request that the interim or provisional relief shall be
observed:
 Such relief may be granted:
o To prevent irreparable loss or injury;
o To provide security for the performance of an obligation;
o To produce or preserve evidence
o To compel any other appropriate acts or omissions.
 The order granting provisional relief may be conditioned upon the
provision of security or any act or omission specified in order.
 Interim or provisional relief is requested by written application
transmitted by reasonable means to the arbitral tribunal and the party
against whom relief is sought, describing in appropriate details of the
precise relief, the party against whom the relief is requested, the
ground for the relief, and the evidence, supporting the request.
 The order granting or denying an application for the interim relief shall
be binding upon the parties.
 Either party may apply with the court for assistance in implementing or
enforcing an interim measure ordered by an arbitral tribunal.
 A party who does not comply with the order shall be liable for all
damages, resulting from noncompliance, including all expenses, and
reasonable attorney's fees, paid in obtaining the order's judicial
enforcement. (Article 4.17., IRR, RA 9285)
 CONDUCT OF ARBITRAL PROCEEDINGS
68. Discuss the conduct of Arbitral proceedings
1) On Treatment of Parties
 The parties shall be treated with equality and each shall be given a full opportunity of
presenting his/her case. (Article 4.18., IRR, RA 9285)

2) On Determination of the Rules of Procedures

a) Subject to the provisions of this Chapter, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the proceedings.
b) Falling such agreement, the arbitral tribunal may, subject to this Chapter,
conduct the arbitration in such manner as it considers appropriate. Unless the
arbitral tribunal considers it inappropriate, the UNCITRAL Arbitration Rules
adopted by the UNCITRAL on 28 April 1976 and the UN General Assemble on 15
December 1976 shall apply subject to the following clarification: All references
to the "Secretary-General of the Permanent Court of Arbitration at the Hague"
shall be deemed to refer to the appointing authority.
c) The power conferred upon the arbitral tribunal includes the power to determine
the admissibility, relevance, materiality and weight of any evidence. (Article
4.19., IRR, RA 9285)
3) On Venue of Arbitration
a) The parties are free to agree on the place of arbitration. Failing such agreement,
the place of arbitration shall be in Metro Manila unless the arbitral tribunal,
having regard to the circumstances of the case, including the convenience of the
parties, shall decide on a different place of arbitration.
b) Notwithstanding the rule stated in paragraph (a) of this provision, the arbitral
tribunal may, unless otherwise agreed by the parties, meet at any place it
considers appropriate for consultation among its members, for hearing
witnesses, experts or the parties, or for inspection of goods, other property or
documents. (Article 4.20., IRR, RA 9285)
4) On the Commencement of Arbitral Proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a
particular dispute commence on the date on which a request for that dispute to be
referred to arbitration is received by the respondent. (Article 4.21., IRR, RA 9285)
5) On the Language to be Used
a) The parties are free to agree on the language or languages to be used in the
arbitral proceedings. Failing such agreement, the language to be used shall be
English. This agreement, unless otherwise specified therein, shall apply to any
written statement by a party, any hearing and any award, decision or other
communication by the arbitral tribunal.
b) The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon by
the parties or determined by the arbitral tribunal in accordance with paragraph
(a) of this Article. (Article 4.222., IRR, RA 9285)
6) On the Statements of Claim and Defense
a) Within the period of time agreed by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting his/her/its claim, the
points at issue and the relief or remedy sought, and the respondent shall state
his/her/its defense in respect of these particulars, unless the parties have
 otherwise agreed as to the required elements of such statements. The parties
may submit with their statements, all documents they consider to be relevant or
may add a reference to the documents or other evidence they will submit.
b) Unless otherwise agreed by the parties, either party may amend or supplement
his/her claim or defense during the course of the arbitral proceedings, unless
the arbitral tribunal considers it inappropriate to allow such amendment having
regard to the delay in making it. (Article 4.23., IRR, RA 9285)
7) On Hearing and Written Proceedings
a) Subject to any contrary agreement by the parties, the arbitral tribunal shall
decide whether to hold oral hearings for the presentation of evidence or for oral
argument, or whether the proceedings shall be conducted on the basis of
documents and other materials. However, unless the parties have agreed that
no hearings at an appropriate stage of the proceedings, if so requested by a
party.
b) The parties shall be given sufficient advance notice of any hearing and of any
meeting of the arbitral tribunal for the purposes of inspection goods, other
property or documents.
c) All statements, documents or other information supplied to the arbitral by one
party shall be communicated to the other party. Also, an expert report or
evidentiary document on which the arbitral tribunal may rely in making its
decision shall be communicated to the parties. (Article 4.24., IRR, RA 9285)
8) On Default of a party
Unless otherwise agreed by the parties, if, without, showing sufficient cause
a) the claimant fails to communicate his statement of claim in accordance with
paragraph (a) Article 4.23 (Statement of Claim and Defense), the arbitral
tribunal shall terminate the proceedings;
b) the respondent fails to communicate his/her/its statement of defense in
accordance with paragraph (a) Article 4.23 (Statement of Claim and Defense),
the arbitral tribunal shall continue the proceedings without treating such failure
in itself as an admission of the claimant’s allegations.
c) any party’s fails to appear at a hearing or to produce documentary evidence, the
arbitral tribunal may continue the proceedings and make the award on the
evidence before it. (Article 4.25., IRR, RA 9285)
9) On Expert appointed by the Arbitral Tribunal
Unless otherwise agreed by the parties, the arbitral tribunal,
a) may appoint one or more experts to report to it on specific issues to be
determined by the arbitral tribunal; or
b) may require a party to give the expert any relevant information or to produce,
or to provide access to, any relevant documents, goods or other property for
his/her inspection.

Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal
considers it necessary, the expert shall, after delivery of his/her written or oral report,
participate in a hearing where the parties have the opportunity to put questions to him
 and to present expert witnesses in order to testify on the points at issue. (Article 4.26.,
IRR, RA 9285)

10) On Court Assistance in Taking Evidence

The arbitral tribunal or a party with the approval of the arbitral tribunal may
request from a court of the Philippines assistance in taking evidence. The court may
execute the request within its competence and according to its rules on taking evidence.
The arbitral tribunal shall have the power to require any person to attend a
hearing as a witness. The arbitral tribunal shall have the power to subpoena witnesses
and documents when the relevancy of the testimony and the materiality thereof has
been demonstrated to it. The arbitral tribunal may also require the retirement of any
witness during the testimony of any other witness.
A party may bring a petition under this Section before the court in accordance
with the Rules of Court or the Special ADR Rules.Article 4.27., IRR, RA 9285)
11) On Rules Applicable to the Substance of Dispute
a) The arbitral tribunal shall decide the dispute in accordance with such rules of
law as are chosen by the parties as applicable to the substance of the dispute.
Any designation of the law or legal system of a given state shall be construed,
unless otherwise expressed, as directly referring to the substantive law of that
state and not its conflict of laws rules
b) Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules, which it considers applicable.
c) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur
only if the parties have expressly authorized it to do so.
d) IIn all cases, the arbitral tribunal shall decide in accordance with the terms of
the contract and shall take into account the usages of the trade applicable to
the transaction. (Article 4.28., IRR, RA 9285)
12) Decision-making by Panel of Arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the
arbitral tribunal shall be made, unless otherwise agreed by other parties, by a majority
of all its members. However, questions of procedure may be decided by a presiding
arbitrator , if so authorized by the parties or all members of the arbitral tribunal. (Article
4.29., IRR, RA 9285)
13) Settlement
If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal
shall terminate the proceedings and, if requested by the parties and not objected to by
the arbitral tribunal, record the settlement in the form of an arbitral award on agreed
terms.
An award on agreed terms shall be made in accordance with the provisions of
Article 4.31 (Form and Contents of Award), and shall state that it is an award. Such an
award has the same status and effect as any other award on the merits of the case.
(Article 4.30., IRR, RA 9285)
14) On Forum and Contents of Award
a) The award shall be made in writing and shall be signed by the arbitrator or
arbitrators. In arbitral proceedings with more than one arbitrator, the signatures
 of the majority of all members of the arbitral tribunal shall suffice, provided that
the reason for any omitted signature is stated.
b) The award shall state the reasons upon which it is based, unless the parties have
agreed that no reasons are to be given or the award is an award on agreed
terms under paragraph (a) of Article 4.20 (Place of Arbitration).
c) The award shall state its date and the place of arbitration as determined in
accordance with paragraph (a) of this Article. The award shall be deemed to
have been made at that place.
d) After the award is made, a copy signed by the arbitrators in accordance with
paragraph (a) of this Article shall be delivered. to each party. (Article 4.31., IRR,
RA 9285)
15) On termination of Proceedings
a) The arbitral proceedings are terminated by the final award or by an order of the
arbitral tribunal in accordance with paragraph (b) of this Article.
b) The arbitral tribunal shall issue an order for the termination of the arbitral
proceedings when:
 The claimant withdraws his/her/its claim, unless the respondent objects
thereto and the arbitral tribunal recognized a legitimate interest on
his/her/its part in obtaining a final settlement of the dispute;
 The parties agree the termination of the proceedings;
 The arbitral tribunal finds that the continuation of the proceedings has for
any other reason become unnecessary or impossible
c) The mandate of the arbitral tribunal ends with termination of the arbitral
proceedings subject to the provisions of Articles 4.33 (Correction and
Interpretation of Award, Additional Award) and paragraph (d) of Articles 4.34
(Application for Setting Aside an Exclusive Recourse against Arbitral Award).
d) Notwithstanding the foregoing, the arbitral tribunal may, for special reasons,
reserve in the final award or order, a hearing to quantity costs and determine
which party shall bear the costs or the division thereof as may be determined to
be equitable. Pending determination of this issue, the award shall not be
deemed final for purposes of appeal ,vacation, correction, or any post-award
proceedings. (Article 4.32., IRR, RA 9285)
16) On Correction and Interpretation of Award, Additional Award
a) Within thirty (30) days from receipt of the award, unless another period of time
has been agreed upon by the parties:
 A party may, with notice to the other party, request the arbitral tribunal
to correct in the award any errors in computation, any clerical or
typographical errors or any errors of similar nature;
 A party may, it so agreed by the parties and with notice to the other
party, request the arbitral tribunal to give an interpretation of a specific
point or part of the award.
b) If the arbitral tribunal considers the request to be justified, It shall make the
correction or give the interpretation within thirty (30) days from receipt of the
request. The interpretation shall form part of the award.
 c) The arbitral tribunal may correct any error of the type referred to in paragraph
(a) of this Article on its own initiative within thirty (30) day from the date of the
award.
d) Unless otherwise agreed by the parties, a party may, with notice to the other
party, request, within thirty (30) days receipt of the award, the arbitral tribunal
to make an additional award as to claims presented in the arbitral proceedings
but omitted from the award. If the arbitral tribunal considers the request to be
justified, it shall make the additional award within sixty (60) days
e) The arbitral tribunal may extend, if necessary, the period of time within which it
shall make a correction interpretation or an additional award under paragraphs
(a) and (b) of this Article.
f) The provisions of Article 4.31 (Form and Contents of Award) shall apply to a
correction or interpretation of the award or to an additional award. (Article
4.33., IRR, RA 9285)
17) On Application for Setting Aside an Exclusive course against Arbitral Award
a) Recourse to a court against an arbitral award may be made only by application
for setting aside in accordance with second and third paragraphs of this Article.
b) An arbitral award may be set aside by the Regional Trial Court only If
i. the party making the application furnishes proof that:
 a party to the arbitration agreement was under some incapacity
; or the said agreement is not valid under the law to which the
parties have subjected it or, failing any indication thereon,
under the law of the Philippines; or
 the party making the application was not given proper notice of
the appointment of an arbitrator or of the arbitral proceedings
or was otherwise unable to present his case; or
 the award deals with a dispute not contemplated by or not
failing within the terms of the submission to arbitration, or
contains, decisions on matters beyond the scope of the
submission to arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from those
not so submitted, only the part of the award which contains
decisions on matters not submitted to arbitration may be set
aside; or
 the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of the
parties, unless such agreement was in conflict with a provision
of ADR Act from which the parties cannot derogate, or, falling
such agreement, was not in accordance with ADR Act; or
ii. the Court finds that:
 the subject-matter of the dispute is not capable of settlement
by arbitration under the law of the Philippines; or
 the award is in conflict with the public policy of the Philippines.
c) An application for setting aside may not be made after three months have
elapsed from the date on which the party making that application had received
the award or, If a request had been made under Article 4.33 (Correction and
Interpretation of Award, Additional Award) from the date on which that request
has been disposed of by the Arbitral tribunal
d) The court, when asked to set aside an award, may, where appropriate and so
requested by a party, suspend the setting aside proceedings for a period of time
determined by it in order to give the arbitral tribunal an opportunity resume the
arbitral proceedings or take such other action as in the arbitral tribunal's
opinion will eliminate the grounds for setting aside.
e) A party may bring a petition under this Article before the court in accordance
with the Special ADR Rules. (Article 4.34., IRR, RA 9285)