Dispute Resolution and Crisis Management PDF

A Self-learning Module for BS Criminology COURSE CODE: Criminology 6 DISPUTE RESOLUTION AND CRISES/INCIDENTS MANAGEMENT Prepared by: Jan Vincent S. Carmen, RCrim., MS...

A Self-learning Module for BS Criminology COURSE CODE: Criminology 6 DISPUTE RESOLUTION AND CRISES/INCIDENTS MANAGEMENT Prepared by: Jan Vincent S. Carmen, RCrim., MS Crim. (In Progress) Instructor I COURSE DESCRIPTION 1|Page COURSE DESCRIPTION This course deals with the study of the process of dealing and resolving conflicts/disputes resolution and crises management. It includes the art of intervention through mediation and reconciliation of disagreements between stakeholder’s agencies. Likewise, the course includes handling of crises that the criminal justice personnel are commonly encountered. Moreover, the study significantly provides mechanisms on how to adopt strategies in dealing with potential and actual crises which are being addressed by concerned agencies and authorities from law enforcement, corrections and communities. COURSE OUTLINE MID-TERM Chapter 1:  Segment I: Concept of Conflict;  What is Conflict?  What are Conflict Theories?  What are the Conflict Resolution Strategies?  Segment II: Alternative Dispute Resolution (ADR) Act;  Segment III: The Office for Alternative Dispute Resolution;  Segment IV: Mediation;  Segment V: International Commercial Arbitration;  Segment VI: Recognition and Enforcement of Awards;  Segment VII: Domestic Arbitration;; and  Segment VIII: Arbitration Law (Republic Act No. 876). Chapter 2: Katarungang Pambarangay Law and Restorative Justice  Segment IX: Katarungang Pambarangay Law; and  Segment X: Restorative Justice. FINALS  Segment 9: Basic concept of crises and incident management;  Segment 10: Nature and types of crises;  Segment 11: Distinction of crises and incidents;  Segment 12: The concept and importance of crisis management;  Segment 13: Composition and functions of crisis management; and  Segment 14: Crisis and incidents preventive measures. TAKE NOTE: The requirements that you must comply in order to evaluate your completion of this course are the following: STUDENT PERFORMANCE EVALUATION LECTURE MIDTERMS Assignment and Activity 15% (Oral presentation, Reflective Writing, Reflective Essay and etc.) Online Class Participation and Recitation 15% Attendance 10% Quiz 20% Midterm Exam 40% FINALS Assignment and Activity 15% (Oral presentation, Reflective Writing, Reflective Essay and etc.) Online Class Participation and Recitation 15% Attendance 10% Quiz 20% Midterm Exam 40% Credit Grade= (Midterm Grade*.40 + Final Term Grade*.60) = 100% Be noted further that your work shall be rated at the end of each term in accordance with the Grading System documented in the Tarlac State University Student Manual which are as follows: 1.0 – Excellent 1.25 - 1.5 – Very Good 1.75 - 2.0 – Good 2.25 - 2.5 – Satisfactory 3.75 - 3.0 – Passing 4.0 – Conditional Failure 2|Page  5.0 – Failing INC – Incomplete OVERVIEW Under CHED Memorandum Order No. 05 series of 2018, the most recent curriculum governing BS Criminology Course, the subject Dispute Resolution and Crisis Management was formally introduced with a course code of Criminology 6. This subject entails a very significant contribution in the field of criminology, law enforcement, public safety, and research. Thus, students will benefit relevant knowledge on activities involving dispute resolution and identify conflicting issues thereby treating them from becoming a worst case which may be occurred in the family, workplace, community, and society in general. Also, understanding on the different principles and methodology in conflict resolution, creating strategic crime prevention and crisis management efforts will be a contributory factor. The promotion of peace and ensuring public safety requires a deep understanding on how to promote conflict resolution at the early stage. In the event of sudden occurrences brought about by crisis, either natural or man – made crisis, the importance of internalizing and applying knowledge on the principles and procedures in Crisis Management will capacitate the learners from being an instrument of peace and public safety on the future. INSTRUCTION TO THE USERS 1. Ask your instructor what type of information they will include on exams. Taking good notes is much easier if you know what is important. Each instructor has their own way of designing their exams, so you may need to change up your note taking strategy to fit their assessments. This information may also be included on the syllabus. 2. Write down important information from your teacher and textbook. It may feel redundant to take notes, since the information is in front of you. However, you will soon forget the facts and dates if you don’t write them down straight away. The same goes for when you are reading the assigned text(s) for the course/class. So, keep a notebook dedicated to classes, and aim to take at least 1 page of notes per chapter read or 30 minutes of lecture you have sat through. For example, you may not need to write down Abraham Lincoln’s exact height. But you should jot down the dates of the Civil War and the date of the Gettysburg Address, for example. 3. Organize your notes chronologically. Maintaining that chronology in the notes that you take while reading will help you organize the information you receive. Always jot down the date of events in your notes and try to keep things sequential. 4. Write down connections between the chronological notes you take. Studying history can often feel like you are memorizing a bunch of disconnected dates, names, and places. Avoid this by making the connections explicit in the notes that you take. Then, when you are preparing for a test or essay, you will be able to draw on these connections and contextualize historical events. 5. Ask your instructor about any information you did not understand. Sometimes students feel embarrassed to ask their teacher questions, but there is no reason to feel that way. If you are confused about a point in the lecture or are struggling to remember any dates, names, or places, don’t hesitate to ask your teacher after class or send your teacher an inquiring email that night. 6. Reading is Not Studying Simply reading and re – reading texts or notes is not actively engaging in the material. It is simply re – reading your notes. Only ‘doing’ the readings for class is not studying. It is simply doing the reading for class. Re – reading leads to quick forgetting. Think of reading as an important part of pre – studying, but learning information requires actively engaging in the material. (Edwards, et al. 2014) Active engagement is the process of constructing meaning from text that involves making connections to lectures, forming examples, and regulating your own learning. (Davis, 2007) Active studying does not mean highlighting or underlining text, re – reading, or rote memorization. Though these activities may help to keep you engaged in the task, they are not considered active studying techniques and are weakly related to improved learning. (Mackenzie, 1994) 7. Ideas for Active Studying a. Create a study guide by topic. Formulate questions and problems and write complete answers. Create your own quiz. Become a teacher. Say the information aloud in your own words as if you are the instructor and teaching the concepts to a class. b. Derive examples that relate to your own experiences. Create concept maps or diagrams that explain the material. Develop symbols that represent concepts. c. Figure out the big ideas so you can explain, contrast, and re-evaluate them. d. Work the problems and explain the steps and why they work. e. Study in terms of question, evidence, and conclusion: What is the question posed by the instructor/author? What is the evidence that they present? What is the conclusion? f. Organization and planning will help you to actively study for your courses. When studying for a test, organize your materials first and then begin your active reviewing by topic. (Newport, 2007) g. Often subtopics are provided on the syllabi. Use them as a guide to help organize your materials. For example, gather all of the materials for one topic (e.g., PowerPoint notes, textbook notes, articles, homework, etc.) and put them together in a pile. Label each pile with the topic and study by topics. The Learning Center (2020) Chapter 1 3|Page  DISPUTE RESOLUTION SYSTEM Pre-Test 1. This Act is known as the "Alternative Dispute Resolution Act of 2004." a. RA 876 c. RA 9285 b. RA 11131 d. RA 6975 2. It 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. a. Frustration c. Crisis b. Stress d. Conflict 3. This Act shall be known as "The Arbitration Law." a. RA 876 c. RA 9285 b. RA 11131 d. RA 6975 4. It 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. a. Arbitration c. Conciliation b. Hearing d. Mediation 5. It is 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 this RA 9285, resolve a dispute by rendering an award. a. Arbitration c. Conciliation b. Mediation d. Trial Learning Objectives After successfully completing this module, you should be able to:  Explain the basic concept of Conflict;  Explain the concepts, nature and procedures governing dispute resolution;  Differentiate Arbitration, Conciliation and Mediation; and  Apply the Implementing Rules and Regulations (IRR) governing the Alternative Dispute Resolution (ADR). 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: 1. Feminist theory; 2. Critical race theory; 3. Postmodern theory and postcolonial theory; 4. Queer theory; 5. Post-structural theory, and 6. 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. 4|Page  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 middle- ground 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) 5|Page  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; 6|Page  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. 7|Page  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) 8|Page  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 there 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 non- party participants to abide by such rules. (Article 3.19., IRR, RA 9285) 9|Page   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 quasi- judicial. 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: 10 | P a g e  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. the complexity of the case; 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. 11 | P a g e  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. 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:  in 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. 12 | P a g e  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: 13 | P a g e   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. 14 | P a g e  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