ETHICAL PROBLEMS IN CAM &

MEDIATION
ROMMEL O. MONDILLA JR.
Four-fold duties of Lawyers

 Lawyers must perform their four-fold duties to

society, the legal profession, the courts
and their clients, in accordance with the
values and norms of the legal profession.
(Gala vs. Bala, 476 SCRA 85, 2005)
Practice of law

 The practice of law means any activity, in or

out of court, which requires the application of
law or procedure. Generally, to practice law is
to give advice or to render any kind of service
which advice or service requires the use in
any degree of legal knowledge or skill (Ulep vs
Legal Clinic, Inc. B.M. No.553, June 17, 1993)
 Appearance in court or any tribunal, legal
counselling or giving legal advice and drafting
legal documents are examples of practice of
law.
Mediation
 a voluntary process in which a mediator,
selected by the disputing parties, facilitates
communication and negotiation, and assists
the parties in reaching a voluntary agreement
regarding a dispute
 (R.A 9285, “Alternative Dispute Resolution Act
of 2004”)
 mediation is non-evidentiary or non-merit
based

 mediation focuses on the facilitation of

communication and negotiation between the
parties in order to encourage them to
voluntarily settle their dispute
COURT-ANNEXED MEDIATION
(CAM)
Court-Annexed Mediation (CAM)
 CAM is a voluntary process conducted under
the auspices of the court by referring the
parties to the Philippine Mediation Center
(PMC) unit for the settlement of their dispute,
assisted by a mediator accredited by the
Supreme Court
 CAM is conducted prior to the pre-trial, where
the judge refers the parties to the PMC for the
mediation of their dispute by their trained and
accredited mediators
 Excluded from the coverage of ADR Act of
2004
A.M. No. 01-10-5-SC-PHILJA
 Oct. 16, 2001
 Designating the Philippine Judicial Academy
(PHILJA) as the Component Unit of the SC for
Court-referred Court-Related Mediation Case
and Other ADR Mechanisms and Establishing
the Philippine Mediation Center (PMC)
 Covered cases are mandatory to be referred
to CAM during the pre-trial stage of court
proceedings
Coverage
1. All civil case, except those which by law may
not be compromised (Art. 2035, N.C.C)
2. Special proceedings for the settlement of
estates
3. The civil aspect of Quasi-Offenses under Title
14 of the RPC
4. The civil aspect of criminal cases where the
imposable penalty does not exceed 6 yrs.
Imprisonment and the offended party is a
private person; and
5. The civil aspect of theft (not qualified theft),
estafa (not syndicated or large scale estafa),
and libel
Judicial Dispute Resolution (JDR)

 JDR is a process whereby the judge (JDR

judge) employs conciliation, mediation or
early neutral evaluation in order to settle a
case at the pre-trial stage. In the event the
JDR fails, then another judge (trial judge) shall
proceed to hear and decide the case
 All cases which were not successfully settled
in CAM shall be referred to JDR by judges in
areas declared as JDR sites
A.M No. 04-3-5-SC RE:Guidelines for
Parties’ Counsel in CAM Cases
 Re-orientation of Attitudes towards Dispute-
view the dispute as a problem-solving opportunity for
lawyers to assists the parties resolve their differences
in ways that are productive for their future lives
 Re-orientation of Lawyer’s role in Mediation-
drop his combative role in adjudication and view his
role as a collaborator with the other counsel
 Assistance in preparing a Compromise
Agreement or Withdrawal of Complaint and
Satisfaction of Claim-the lawyers shall assist the
mediator in putting in writing the terms and see to it
that they are not contrary to law, morals, good
customs, public order or public policy
Problem
 You are the judge in civil case for legal separation, with
plea for support pendente lite. At the pre-trial, you are
enjoined under rules prescribed by the Court
Administrator, to try your best to reconcile or at least
to find a compromise between the parties. You do that,
inquiring into the family life of the parties, examining
the source of their disagreement, and probing into
their hidden fears and interests. From your inquiry, you
get to know that it is probably the husband who is at
fault, and that the wife needs immediate support,
otherwise she and her four children will starve. Despite
your best efforts, your attempts to settle fail, and the
case goes to trial.
 Will you go and try the case yourself, or will you inhibit
yourself and pass on the case to another judge?
 A.M No. 03-05-01-SC
The New Code of Judicial Conduct for the Philippine
Judiciary
 CANON 1 Independence- a pre requisite to
the rule of law and fundamental guarantee of
a fair trial.
 Sec. 1 Judges shall exercise the judicial function
independently on the basis of their assessment of
the facts and in accordance with a conscientious
understanding of the law, free of any extraneous
influence, inducement, pressure, threat or
interference, direct or indirect, from any quarter or
for any reason.
 CANON 3 Impartiality- Impartiality is
essential to the proper discharge of the
judicial itself also to the process by which
decision is made
 Sec. 1. Judges shall perform their judicial
duties without favor, bias or prejudice
 CANON 5 Equality- Ensuring equality of
treatment to all before the courts is essential
to the due performance of the judicial office

 Sec. 2 Judges shall not, in the performance of

judicial duties, by words or conduct, manifest
bias or prejudice towards any person or group
on irrelevant grounds
Sec. 5, Canon 3
 Judges shall disqualify themselves from participating in any proceedings in
which they are unable to decide the matter impartially or in which it may
appear to a reasonable observer that they are unable to decide the matter
impartially. Such proceedings include, but are not limited to, instances where:
 a.The judge has actual bias or prejudice concerning a party or personal
knowledge of disputed evidentiary facts concerning the proceedings;
 b.The judge previously served as a lawyer or was a material witness in the
matter in controversy;
 c. The judge, or a member of his or her family, has an economic interest in the
outcome of the matter in controversy;
 d.The judge served as executor, administrator, guardian, trustee or lawyer in
the case or matter in controversy, or a former associate of the judge served as
counsel during their association, or the judge or lawyer was a material witness
therein;
 e.The judge's ruling in a lower court is the subject of review;
 f.The judge is related by consanguinity or affinity to a party litigant within the
sixth civil degree or to counsel within the fourth civil degree; or
 g.The judge knows that his or her spouse or child has a financial interest, as
heir, legatee, creditor, fiduciary, or otherwise, in the subject matter in
controversy or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceedings;
ETHICAL PROBLEMS IN
MEDIATION
 1. You are assisting a client in a
mediation proceeding. During the
proceeding, the mediator makes a
doctrinal statement about the rights of
the parties which is erroneous but which
is favorable to your client’s case. Will
you correct the mediator and state the
right doctrine, or will you just keep
quiet? Why?
 CANON 17-A lawyer owes fidelity to the
cause of his client and he shall be mindful of
the trust and confidence reposed in him

 Canon 17 provides that lawyers owe fidelity to

the cause of their client and must therefore be
always mindful of the trust and confidence
reposed in them. They are mandated to serve
their client with competence and diligence.
 CANON 18-A lawyer shall serve his client
with competence and diligence

 Lawyers are mandated to serve their client

with competence and diligence. Specifically,
they are not to “neglect a legal matter
entrusted to them and their negligence in
connection therewith shall render them liable”
CPR requires every lawyer to serve his client
with utmost dedication, competence and
diligence.
 2. You are counsel in a mediation
proceeding, and the mediator assigned
to the case by the Supervisor happens
to be your friend. The other party and
his counsel do not know this. If the
mediator does not reveal this, will you
volunteer the information, or just keep
quiet?
 CANON 13- A lawyer shall rely upon the
merits of his cause and refrain from any
impropriety which tends to influence, or gives
the appearance of influencing the court

A lawyer must not display or boast of being

influential to the court. This will erode the
confidence of the public on the fair
administration of justice
 Rule 13.01- A lawyer shall not extend
extraordinary attention or hospitality to, nor
seek opportunity for cultivating familiarity
with Judges

 A lawyer must rely on the merits of his case

and should avoid using influences and
connection to win his case. His cases must be
won because they are meritorious and not
because of connections, clout, dominance or
influence
 CANON 15-A Lawyer shall observe candor,
fairness and loyalty in all his dealings and
transactions with his clients.

 As indispensable part of the system of

administering justice, attorneys must comply
strictly with the oath of office and the canons
of professional ethics. Lawyers should be fair,
honest, respectable, above suspicion and
beyond reproach in dealing with their clients.
 RULE 15.06- A lawyer shall not state or imply
that he is able to influence any public official,
tribunal or legislative body
 This rule prohibits influence-peddling
 It is any agreement entered into because of
the actual or supposed influence to
administrative or executive officers in the
discharge of their duties which contemplates
the use of personal influence and personal
solicitation rather than any appeal to the
judgement of the officer on the merits of the
object sought
 3. In preparing for a mediation
proceeding, you learn that the mediator
assigned to the case of your client is a
married girl with whom you have had an
extra-marital affair. Will you reveal this
to disqualify her or not?
Immoral conduct
 That conduct which is so wilful, flagrant, or
shameless as to show indifference to the
opinion of good and respectable members of
the community. Furthermore, such conduct
must not only be immoral, but grossly
immoral.

 constitute a criminal act or so unprincipled as

to be reprehensible to a high degree or
committed under such scandalous or revolting
circumstances as to shock the common sense
of decency.
 RULE 1.01- A lawyer shall not engage in
unlawful, dishonest, immoral or deceitful
conduct

 As servants of the law and officers of the

court, lawyers are required to be at the
forefront of observing the values and
maintaining the rule of law. They are expected
to make themselves exemplars worthy of
emulation.
 CANON 7- A lawyer shall at all times uphold
the integrity and dignity of the legal
profession and support the activities of the
integrated bar
 RULE 7.03-A lawyer shall not engage in
conduct that adversely reflects on his fitness
to practice law, nor shall he whether in public
or private life, behave in a scandalous manner
to the discredit of the legal profession.
 4. In a civil case that was subjected to
mediation but failed, the opposing party
testifies in open court that he has been trying
to settle with your client but he failed due to
the intransigence/stubbornness of your client.
In the mediation proceedings, however, it was
the opposing party who backed out of a
possible compromise after initially agreeing to
it. Since mediation proceedings are
confidential, will you bring out this fact to
contradict him or not? Why or why not?
Sec. 9 of R.A 9285 ADR ACT
 SEC. 9. Confidentiality of Information. - 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, a mediator, or a nonparty participant may refuse to

disclose and may prevent any other person from disclosing a
mediation communication.

 (c) Confidential Information shall not be subject to discovery and

shall be inadmissible if 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.
 SEC. 10. Waiver of Confidentiality. - 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.
 SEC. 11. Exceptions to Privilege. -
 (a) There is no privilege against disclosure
under Section 9 if mediation communication
is:
 (1) in an agreement evidenced by a record
authenticated by all parties to the agreement;
 (2) available to the public or that is made
during a session of a mediation which is open,
or is required by law to be open, to the public;
 CANON 19-A lawyer shall represent his client
with zeal within the bounds of the law

 Canon 19 reminds legal practitioners that a

lawyer’s duty is not to his client but to the
administration of justice; to that end, his
client’s success is wholly subordinate; and his
conduct ought to and must always be
scrupulously observant of law and ethics.
 5. In a family dispute under mediation, you
are assisting the defendant husband who has
been accused of failing to support his wife and
child. In the mediation proceedings, you
witness the gross imbalance of power
between the wealthy and articulate husband
and he destitute and inarticulate wife. The
proceedings have become an opportunity for
the husband to browbeat/intimidate the wife
and put her under intense psychological
pressure. The wife cannot even afford to hire
the services of counsel. As assisting counsel
for the husband, what will you do, if you do at
all? Why?
 CANON 1- A lawyer shall uphold the
constitution, obey the laws of the land and
promote respect for law of and legal processes

 The first duty of lawyer is not to client but the

administration of justice. A member of the bar
haw sworn an oath to uphold the laws of the
land, more particularly our constitution and
promote, at every opportunity, through word
and deed, respect for our country’s laws and
our courts.
 RULE 15.07- A lawyer shall empress upon his
client compliance with the laws and the
principles of fairness

 A lawyer owes fidelity to the cause of his

client, but not at the expense of truth and the
administration of justice and counsel for
petitioner is reminded that it is his duty not to
unduly delay a case, impede the execution of
a judgment or misuse court processes.

 This rule also obliges lawyers to impress upon

their clients compliance with the laws and
Case Study
“THE FATHER IN LAW”
-The counsel of Harry
-The mediator, Atty. Mariano
-The counsel of Kathleen’s father

1. Identify the possible violations under

the Code of Professional Conduct (CPR)
and why is it a violation?
The counsel of Harry
 CANON 13- A lawyer shall rely upon the
merits of his cause and refrain from any
impropriety which tends to influence or gives
the appearance of influencing the court
The counsel of Kathleen’s father
 CANON 10- A lawyer owes candor, fairness
and good faith to the court
 RULE 10.01- A lawyer shall not do any
falsehood, nor consent to the doing of any in
court; nor shall be mislead or allow the Court
to be misled by any artifice
 CANON 19- A lawyer shall represent his
client with zeal within the bounds of the Law
 CANON 12-A lawyer shall exert every effort
and consider it his duty to assist in the speedy
and efficient administration of justice

 RULE 15.02- A lawyer shall be bound by the

rule on privilege communication in respect of
matters disclosed to him by a prospective
client
The mediator, Atty. Mariano
Code of Ethical Standards for Mediators under
A.M No. 01-10-5-SC-PHILJA
 Canon 2: Responsibilities to parties
 Impartiality-the mediator shall maintain
impartiality towards all parties. He shall
withdraw from mediation if the mediator
believes he can no longer be impartial.
 Conflict of Interest- the mediator shall
refrain from participating in the mediation of
any dispute if he/she perceives that
participation as a Mediator will be a clear
conflict of interest.
 -a mediator shall disclose any known,
significant current or past personal
relationship with any party or attorney
involved in the mediation and the Mediator
and parties should discuss on a case by case
basis whether or not to continue
 -after the disclosure, and a party does not
seek inhibition, the Mediator shall continue as