Mediation and JDR in civil cases
By Atty. Tranquil G.S. Salvador III
January 14, 2022
Manila Standard
“Parties to a dispute must take advantage of these to save their and the court’s time and resources.”
Mediation is a method of settling disputes outside a court setting where a neutral third party, known as a mediator, acts as a link between the parties (Barron’s Law Dictionary). In the Philippines, court-annexed mediation (CAM) is conducted by referring the parties to the mediator of the Philippine Mediation Center Unit (PMCU) accredited by the Supreme Court.
On the other hand, Judicial Dispute Resolution (JDR) is the process wherein a judge known as the JDR Judge employs conciliation, mediation, or early neutral evaluation in order to settle a case at the pre-trial stage (Definition, Philippine Judicial Academy). Under the 2019 Amendment to the Rules of Civil Procedure (ARCP), the JDR judge is a judge other than the judge originally assigned to hear and try the case.
The CAM must be terminated no later than 30 days from the receipt of the referral order from the court and the JDR no later than 15 days from the receipt of such a referral order (Section 8, Chapter 2B and Section 3, 2C, A.M. No. 19-10-20-SC). If both the CAM and JDR are unsuccessful, the trial will proceed on the dates agreed upon during the pre-trial before the judge originally assigned to handle the case (Sections 8 and 9, Rule 18, ARCP).
The CAM shall be mandatory for all ordinary civil cases, including mediatable permissive or compulsory counterclaim or cross-claim. It shall also be mandatory for all special civil actions, except Declaratory Relief (Rule 63), Review of Decisions of COA or COMELEC (Rule 64), Certiorari, Prohibition and Mandamus (Rule 65), Quo Warranto (Rule 66), and Contempt (Rule 71) (Section 1(a)(b), Chapter 1).
CAM is mandatory in special proceedings cases involving the settlement of estate where the dispute involves claims against the estate, or the distribution or partition of the estate in intestate proceedings; and cases involving issues under the Family Code and other laws, in relation to support, custody, visitation, property relations, guardianship of minor children, and other issues which can be the subject of a compromise agreement (Section 1(c)(d), Chapter 1).
Intellectual property cases, commercial or intra-corporate controversy cases, and environmental cases are all mandated to go through CAM (Section 1(e)(f)(g), Chapter 1). However, environmental cases are not required to undergo JDR unless the judge of the court to which the case was originally filed is convinced that settlement is still possible (Section 2(a), Chapter 1).
All cases subject of CAM and appealed cases from the first level courts or metropolitan/municipal trial courts may be referred to JDR in areas declared as JDR sites. (Section 2(a)(b), Chapter 1). The other cases that may be referred to JDR are: (a) settlements of estate, testate and intestate; (b) cases of forcible entry and unlawful detainer; (c) civil cases involving title to, or possession of, or interest over real property; and (d) habeas corpus cases decided by the metropolitan/municipal trial courts in the absence of any Regional Trial Court Judge (Section 2(1) to (4), Chapter 1).
In all other actions or proceedings where compromise is not prohibited by law and there is a likelihood of settlement, either or both of the parties may, by oral manifestation or written motion after the pre-trial/preliminary conference, or at any stage of the proceedings, request the court to refer their dispute to CAM and JDR, provided that there are still factual issues to be resolved (Section 3, Chapter 1).
There are cases that cannot be resolved by a compromise and therefore may not be referred to CAM and JDR. These are: (a) cases involving the civil status of persons; validity of a marriage or legal separation, any grounds for legal separation, future support, the jurisdiction of courts, and future legitime; (b) habeas corpus petitions; (c) probate of a will; and (d) cases with pending applications for restraining orders or preliminary injunctions (Section 4, Chapter 1).
However, for marriage cases where the parties inform the court that they have agreed to undergo mediation on some aspects of the case, the court may allow mediation on the custody of minor children, separation of property, or support pendente lite. By mutual consent of the parties, restraining orders and preliminary injunctions can also be subject to mediation (Section 4, Chapter 1).
It shall be the duty of the Judge during Pre-Trial/Preliminary Conference to orient the parties and counsels on: (a) the CAM process; (b) their mandatory appearance during the mediation proceedings; (c) their duty to negotiate in good faith and to exert earnest efforts to settle the case; and (d) the consequences of and sanctions for failure to appear before the PMCU or any misconduct or misbehavior committed during the mediation proceedings (Section 2(a)(b), Chapter 2A).
The Judge shall inform the parties that in case there is no settlement during CAM, the case may be referred to another court for JDR if the former is convinced that settlement is still possible. The parties will be informed that the JDR Judge may conduct a non-binding early neutral evaluation on the merits of their respective cases (Section 2(c)(d), Chapter 2A).
In the initial appearance of the parties and counsels for CAM, the PMCU shall require them to present proof of payment of mediation fees and assist them in selecting a mutually acceptable mediator from among the roster of mediators in the PMCU (Sections 2 and 3, Chapter 2B). If the parties cannot jointly select a common mediator, the PMCU shall, in the presence of the parties, choose the mediator by lot from among the mediators present at the unit (Section 4, Chapter 2B).
The PMCU shall submit a Mediator’s Report to the court specifying the result of the mediation (Section 12, Chapter 2B). If a compromise agreement is reached by the parties, the judgment of the court approving the compromise agreement shall contain a statement that it was rendered through CAM. This is to distinguish the CAM judgment from the JDR judgment and vice versa. (Section 13, Chapter 2B, Section 9, Chapter 2C).
Upon receipt of the Mediator’s Report stating that no settlement was reached in CAM, the referring judge shall determine, in the hearing set for this purpose, if settlement is still possible, and if he is convinced that it is, refer the case to the JDR Judge (Section 1, Chapter 2C). Only those judges who have undergone skills-based training in JDR procedures and stationed in areas declared as JDR sites, are authorized to conduct JDR (Section 4, Chapter 2C).
The JDR Judge shall then conduct the JDR process as mediator, conciliator, and/or neutral evaluator to actively assist and facilitate negotiations among the parties for them to settle their dispute. As mediator and conciliator, he facilitates the settlement discussions between the parties to reconcile their differences (Section 5, Chapter 2C).
As a neutral evaluator, he assesses the relative strengths and weaknesses of each party’s case and makes a non-binding and impartial evaluation to guide the parties to a fair and mutually acceptable settlement of their dispute. If the case is not settled in JDR, the JDR Judge shall accomplish the JDR Report and return the case to the Judge for the continuation of the proceedings in court (Sections 5 and 8, Chapter 2C).
The trial court shall impose the following sanctions in case parties and counsels fail to appear during CAM or JDR proceedings: (a) dismissal of the case, when there is failure of the plaintiff and counsel to appear without valid cause; or (b) ex-parte presentation of plaintiff’s evidence and dismissal of the defendant’s counterclaim when there is failure of the defendant and counsel to appear without valid cause (Section 5, Chapter 2D).
The court may, likewise, impose other sanctions, including but not limited to censure, reprimand, contempt, or reimbursement by the absent party of the costs of the appearing party, including attorney’s fees for that day up to treble such costs, which are payable on or before the date of the re-scheduled setting. In the exercise of its sound discretion, the trial court may lift, set aside, or modify the sanctions previously imposed (Section 5 and 6, Chapter 2D).
Any and all matters discussed or communications made, including requests for mediation, and documents presented during CAM and JDR shall be privileged and confidential. The mediator or JDR Judge shall not, in any manner, record the proceedings. No transcript or minutes of the mediation proceedings shall be taken. If personal notes are taken for guidance, the notes shall be destroyed. Should such records exist, the same shall also be privileged and confidential (Section 7, Chapter 2D).
Parties to a dispute must take advantage of the CAM and JDR in order to save their and the court’s time and resources. It may not look like a complete victory for either the complainant or defendant based on the reliefs sought in their respective pleadings but it may terminate the case that causes anxiety, sleepless nights and emotional distress. Hence, it is a win-win solution.
https://manilastandard.net/opinion/columns/footnotes-by-tranquil-g-s-salvador-iii/314065991/mediation-and-jdr-in-civil-cases.html
“Parties to a dispute must take advantage of these to save their and the court’s time and resources.”
Mediation is a method of settling disputes outside a court setting where a neutral third party, known as a mediator, acts as a link between the parties (Barron’s Law Dictionary). In the Philippines, court-annexed mediation (CAM) is conducted by referring the parties to the mediator of the Philippine Mediation Center Unit (PMCU) accredited by the Supreme Court.
On the other hand, Judicial Dispute Resolution (JDR) is the process wherein a judge known as the JDR Judge employs conciliation, mediation, or early neutral evaluation in order to settle a case at the pre-trial stage (Definition, Philippine Judicial Academy). Under the 2019 Amendment to the Rules of Civil Procedure (ARCP), the JDR judge is a judge other than the judge originally assigned to hear and try the case.
The CAM must be terminated no later than 30 days from the receipt of the referral order from the court and the JDR no later than 15 days from the receipt of such a referral order (Section 8, Chapter 2B and Section 3, 2C, A.M. No. 19-10-20-SC). If both the CAM and JDR are unsuccessful, the trial will proceed on the dates agreed upon during the pre-trial before the judge originally assigned to handle the case (Sections 8 and 9, Rule 18, ARCP).
The CAM shall be mandatory for all ordinary civil cases, including mediatable permissive or compulsory counterclaim or cross-claim. It shall also be mandatory for all special civil actions, except Declaratory Relief (Rule 63), Review of Decisions of COA or COMELEC (Rule 64), Certiorari, Prohibition and Mandamus (Rule 65), Quo Warranto (Rule 66), and Contempt (Rule 71) (Section 1(a)(b), Chapter 1).
CAM is mandatory in special proceedings cases involving the settlement of estate where the dispute involves claims against the estate, or the distribution or partition of the estate in intestate proceedings; and cases involving issues under the Family Code and other laws, in relation to support, custody, visitation, property relations, guardianship of minor children, and other issues which can be the subject of a compromise agreement (Section 1(c)(d), Chapter 1).
Intellectual property cases, commercial or intra-corporate controversy cases, and environmental cases are all mandated to go through CAM (Section 1(e)(f)(g), Chapter 1). However, environmental cases are not required to undergo JDR unless the judge of the court to which the case was originally filed is convinced that settlement is still possible (Section 2(a), Chapter 1).
All cases subject of CAM and appealed cases from the first level courts or metropolitan/municipal trial courts may be referred to JDR in areas declared as JDR sites. (Section 2(a)(b), Chapter 1). The other cases that may be referred to JDR are: (a) settlements of estate, testate and intestate; (b) cases of forcible entry and unlawful detainer; (c) civil cases involving title to, or possession of, or interest over real property; and (d) habeas corpus cases decided by the metropolitan/municipal trial courts in the absence of any Regional Trial Court Judge (Section 2(1) to (4), Chapter 1).
In all other actions or proceedings where compromise is not prohibited by law and there is a likelihood of settlement, either or both of the parties may, by oral manifestation or written motion after the pre-trial/preliminary conference, or at any stage of the proceedings, request the court to refer their dispute to CAM and JDR, provided that there are still factual issues to be resolved (Section 3, Chapter 1).
There are cases that cannot be resolved by a compromise and therefore may not be referred to CAM and JDR. These are: (a) cases involving the civil status of persons; validity of a marriage or legal separation, any grounds for legal separation, future support, the jurisdiction of courts, and future legitime; (b) habeas corpus petitions; (c) probate of a will; and (d) cases with pending applications for restraining orders or preliminary injunctions (Section 4, Chapter 1).
However, for marriage cases where the parties inform the court that they have agreed to undergo mediation on some aspects of the case, the court may allow mediation on the custody of minor children, separation of property, or support pendente lite. By mutual consent of the parties, restraining orders and preliminary injunctions can also be subject to mediation (Section 4, Chapter 1).
It shall be the duty of the Judge during Pre-Trial/Preliminary Conference to orient the parties and counsels on: (a) the CAM process; (b) their mandatory appearance during the mediation proceedings; (c) their duty to negotiate in good faith and to exert earnest efforts to settle the case; and (d) the consequences of and sanctions for failure to appear before the PMCU or any misconduct or misbehavior committed during the mediation proceedings (Section 2(a)(b), Chapter 2A).
The Judge shall inform the parties that in case there is no settlement during CAM, the case may be referred to another court for JDR if the former is convinced that settlement is still possible. The parties will be informed that the JDR Judge may conduct a non-binding early neutral evaluation on the merits of their respective cases (Section 2(c)(d), Chapter 2A).
In the initial appearance of the parties and counsels for CAM, the PMCU shall require them to present proof of payment of mediation fees and assist them in selecting a mutually acceptable mediator from among the roster of mediators in the PMCU (Sections 2 and 3, Chapter 2B). If the parties cannot jointly select a common mediator, the PMCU shall, in the presence of the parties, choose the mediator by lot from among the mediators present at the unit (Section 4, Chapter 2B).
The PMCU shall submit a Mediator’s Report to the court specifying the result of the mediation (Section 12, Chapter 2B). If a compromise agreement is reached by the parties, the judgment of the court approving the compromise agreement shall contain a statement that it was rendered through CAM. This is to distinguish the CAM judgment from the JDR judgment and vice versa. (Section 13, Chapter 2B, Section 9, Chapter 2C).
Upon receipt of the Mediator’s Report stating that no settlement was reached in CAM, the referring judge shall determine, in the hearing set for this purpose, if settlement is still possible, and if he is convinced that it is, refer the case to the JDR Judge (Section 1, Chapter 2C). Only those judges who have undergone skills-based training in JDR procedures and stationed in areas declared as JDR sites, are authorized to conduct JDR (Section 4, Chapter 2C).
The JDR Judge shall then conduct the JDR process as mediator, conciliator, and/or neutral evaluator to actively assist and facilitate negotiations among the parties for them to settle their dispute. As mediator and conciliator, he facilitates the settlement discussions between the parties to reconcile their differences (Section 5, Chapter 2C).
As a neutral evaluator, he assesses the relative strengths and weaknesses of each party’s case and makes a non-binding and impartial evaluation to guide the parties to a fair and mutually acceptable settlement of their dispute. If the case is not settled in JDR, the JDR Judge shall accomplish the JDR Report and return the case to the Judge for the continuation of the proceedings in court (Sections 5 and 8, Chapter 2C).
The trial court shall impose the following sanctions in case parties and counsels fail to appear during CAM or JDR proceedings: (a) dismissal of the case, when there is failure of the plaintiff and counsel to appear without valid cause; or (b) ex-parte presentation of plaintiff’s evidence and dismissal of the defendant’s counterclaim when there is failure of the defendant and counsel to appear without valid cause (Section 5, Chapter 2D).
The court may, likewise, impose other sanctions, including but not limited to censure, reprimand, contempt, or reimbursement by the absent party of the costs of the appearing party, including attorney’s fees for that day up to treble such costs, which are payable on or before the date of the re-scheduled setting. In the exercise of its sound discretion, the trial court may lift, set aside, or modify the sanctions previously imposed (Section 5 and 6, Chapter 2D).
Any and all matters discussed or communications made, including requests for mediation, and documents presented during CAM and JDR shall be privileged and confidential. The mediator or JDR Judge shall not, in any manner, record the proceedings. No transcript or minutes of the mediation proceedings shall be taken. If personal notes are taken for guidance, the notes shall be destroyed. Should such records exist, the same shall also be privileged and confidential (Section 7, Chapter 2D).
Parties to a dispute must take advantage of the CAM and JDR in order to save their and the court’s time and resources. It may not look like a complete victory for either the complainant or defendant based on the reliefs sought in their respective pleadings but it may terminate the case that causes anxiety, sleepless nights and emotional distress. Hence, it is a win-win solution.
https://manilastandard.net/opinion/columns/footnotes-by-tranquil-g-s-salvador-iii/314065991/mediation-and-jdr-in-civil-cases.html
