Guidelines for the Implementation of Conciliation-Mediation of Cooperative Disputes at the Union/Federations ( CDA Memorandum Circular No. 04-07 )

March 20, 2007

CDA MEMORANDUM CIRCULAR NO. 04-07

 

These Guidelines were developed pursuant to Section 14, Article XII of the 1987 Constitution; Republic Act No. 6939 creating the Cooperative Development Authority (CDA) as an agency mandated to promote the viability and growth of cooperatives, towards this objective, CDA is empowered to provide among other things, technical assistance to cooperatives and to implement the cooperative laws; pursuant further to Article 121 of Republic Act No. 6938, otherwise known as the Cooperative Code of the Philippines, which directs that disputes between and among cooperative members, officers, directors and committee members and intra-cooperative disputes shall, as far as practicable, be settled amicably in accordance with the conciliation or mediation mechanisms embodied in the by-laws of the cooperative and in applicable laws, congruent with State recognition of the principle of subsidiarity, as provided in par. 3, Article 2 of the same Republic Act and reinforced by Republic Act 9285 known as the Alternative Dispute Resolution Act of 2004.

SECTION 1. Declaration of Principles.— The Conciliation-Mediation Process shall be conducted in accordance with the following principles:

a) Subsidiarity — all disputes shall be resolved amicably at the secondary Level;

b) Confidentiality — no transcript of the proceedings shall be taken during the conciliation-mediation process and that all notes and admissions of the parties shall be inadmissible in any other proceedings;

c) Speedy inexpensive conciliation-mediation process — no technical rules of evidence shall be applicable hereunder;

d) Flexibility — the Conciliation-Mediation Committee, Conciliation-Mediation Coordinator and any other party involved in the process shall be vested with ample discretion to conduct the same and to pursue whatever Conciliation-Mediation options as agreed upon by the parties;

e) Liberal Construction — these guidelines shall be liberally construed in favor of attaining the paramount objective of amicably settling disputes at the lowest level;

f) Independence and Autonomy — the members of the Conciliation-Mediation Committee, the Conciliation-Mediation Coordinators and Conciliator-Mediators shall be insulated from all types of external influences and pressures; ASHEca

g) Accessibility — the process is open to all member-cooperatives desirous of solving their disputes and/or problems amicably as the CDA recognizes the need to make justice accessible as widely as possible to all members of the cooperative;

h) Voluntariness — submission to the conciliation-mediation process shall be completely voluntary.

SECTION 2. Scope.— These Guidelines shall govern the administration and operation of the conciliation-mediation process, provided that nothing in these Guidelines shall preclude the parties from seeking other modes of amicably settling the dispute, and provided further that Conciliation-Mediation shall not prevent the Union/Federation from implementing sanctions and penalties against violations of its rules and regulations.

SECTION 3. Coverage.— All cooperative disputes and issues unresolved at the primary level between and among member-cooperatives, board/directors, committee/member, other officers, employees, clients and/or beneficiaries of the Union/Federation.

SECTION 4. Definition of Terms.—

a) Conciliation — A process whereby a neutral third party takes a vigorous and active role in assisting disputants formulate solutions in order to reach an amicable settlement.

b) Mediation — A process whereby the neutral third party facilitates the negotiation between disputing parties to reach a voluntary, mutually satisfactory outcome.

c) Conciliator-Mediator — A qualified individual who provides conciliation-mediation services.

d) Conciliation-Mediation Committee Coordinator — A member of the management staff designated by the General Manager serving as liaison to the Committee and the disputants.

e) Pool of Conciliator-Mediators — A group of Conciliator-Mediators recognized by the CDA.

f) Conflict Coaching — A stage in the conciliation-mediation process, the objective of which is to clarify the issues and interests of each party.

g) Conciliated-Mediated Settlement Agreement — A written agreement following a successful conciliation-mediation proceedings prepared and duly signed by the parties with the assistance of the Conciliator-Mediator.

h) Certificate of Non-Settlement — A document issued by the Conciliation-Mediation Committee in case of failed or refused Conciliation-Mediation.

i) Refused Conciliation-Mediation — A situation when one or both parties refuse to enter Conciliation-Mediation, or fail to appear despite notice, or despite signing of the Agreement to Conciliate-Mediate.

SECTION 5. The Conciliation-Mediation Committee Composition, Qualifications, Terms of Service and Functions —

a) Composition.— The Committee shall be composed of at least three (3) members either elected by the General Assembly or appointed by the Board of Directors in accordance with the cooperative by-laws. The committee shall elect from among themselves, the chairman, vice-chairman and secretary.

b) Qualifications.— Any member in good standing is qualified to become member of the Committee, provided he/she is not an officer of the Cooperative.

c) Terms of Service.— Members of the Committee may serve for two (2) years, or as may be provided by the cooperative by-laws. In case of vacancy in the Conciliation-Mediation committee, the Board may either cause an election to fill the vacancy or appoint a qualified member to fill the vacant position as may be provided by the cooperative Union/Federation by-laws.

d) Functions.— The Committee shall have the following functions:

1. Formulate and develop the Conciliation-Mediation Program and ensure that it is properly implemented;

2. Monitor Conciliation-Mediation operations (entry of new cases, status of pending cases, performance of Conciliator-Mediators);

3. Submit semi-annual reports to the CDA within fifteen days after the end of every semester;

4. Accept and File Evaluation Reports;

5. Submit recommendations for improvements to the BOD; and

6. Recommend to the Board any representative of member-cooperatives for Conciliation-Mediation Training as Cooperative Conciliator-Mediator.

SECTION 6. Termination of Members of the Committee.— Members of the Committee may be terminated for violation of the Code of Ethical Standards, breach of the provision on confidentiality, manifest partiality, conduct undermining the integrity of the Conciliation-Mediation process and such other grounds as may be provided in the by-laws.

SECTION 7. Conciliation-Mediation Committee Coordinator. — Designation and Functions:

a) The Board of Directors through the General Manager shall designate a Conciliation-Mediation Coordinator from the management staff.

b) The Conciliation-Mediation Coordinator shall have the following functions:

1. Receive complaints, and assist the disputing parties in reducing their complaints in writing;

2. Confirm parties' request to participate in Conciliation-Mediation;

3. Assist parties in the selection of a Conciliator-Mediator;

4. Monitor and report on the outcome of Conciliation-Mediation conducted by non-pool Conciliator-Mediators;

5.  Receive and file the Conciliator-Mediator's evaluation form;

6. Submit to the Committee the monthly report summarizing status of all cases processed and the results of the evaluation of the Conciliation-Mediation Process; cADEHI

7. Facilitate the issuance of the Certificate of Non-Settlement from any failed or refused Conciliation-Mediation;

8. Monitor and fill-up the documents on the Conciliation-Mediation process;

9. Send communication to the disputants; and

10. Maintain an updated list of Conciliator-Mediator.

SECTION 8. Filing of the Complaint.— Any member-cooperative who has a complaint constituting a dispute as stated in Section 3 of these Guidelines may file said complaint before the Coordinator.

A non-member-cooperative or person/organization may file a complaint before the Coordinator against those stated in Section 3 of these guidelines, provided it is determined by the Conciliation-Mediation Committee that the dispute, if remained unresolved, will directly affect the operations of the cooperative.

However, if the complaint filed is against any member of the Conciliation-Mediation Committee, the Board of Directors shall constitute among themselves a Conciliation-Mediation Committee for that purpose.

SECTION 9. Contents of the Complaint.— The written complaint shall contain the name of person/cooperative and address of the parties including a brief statement of the issues being complained of.

SECTION 10. The Preliminary Conference.— The primary purpose of the preliminary conference is to confirm the parties' interest to enter into Conciliation-Mediation. A Notice of Conference shall be in writing and signed by the Secretary of the committee. The Notice shall indicate the venue, time and date of the conference.

If one or all parties do not appear in the scheduled conference, the Coordinator shall send another Notice for the parties to appear on the next scheduled conference. Failure to appear without valid cause shall be construed as Refused Conciliation-Mediation. Hence, a Certificate of Non-Settlement shall be issued.

SECTION 11. Selection of the Conciliator-Mediator:

a) The Conciliator-Mediator shall be mutually selected by the disputants from the Pool of Recognized Mediators, preferably from the cooperative and within the area.

b) A Conciliator-Mediator who is not among the Pool of Recognized Conciliator-Mediators may provide Conciliation-Mediation service, provided he/she is chosen with the mutual consent of the parties.

c) The parties have the option to request replacement of the Conciliator-Mediator at any time during the Conciliation-Mediation proceedings, due to loss of confidence and partiality.

 

d) Members of the Committee may provide Conciliation-Mediation services during and after their term, provided they are selected by both parties for such service.

SECTION 12. Qualification of Individuals to the Pool of Conciliator-Mediators.— Any individual may apply to be a Recognized Conciliator-Mediator. The recognition process of the CDA shall include compliance with training requirements and successful completion of evaluation instruments and standards.

SECTION 13. Training and Education of Conciliator-Mediators.— The Conciliator-Mediators shall undergo a CDA-approved training and education program, and conform to set criteria for recognition prescribed by the CDA. The Federation Union may recommend qualified individual to the Pool of Conciliator-Mediators.

SECTION 14. Order of Conciliation-Mediation Proceedings:

a) Filing of Complaint.— The Complainant/s shall file the complaint with the Conciliation-Mediation Coordinator.

b) Issuance of Notice of Preliminary Conference.— The Coordinator shall issue a Notice of Preliminary Conference to the parties copy furnish the Conciliation-Mediation Committee.

c) Conduct of Preliminary Conference by the Coordinator.— During the preliminary conference, the Coordinator shall encourage the parties to conciliate-mediate. If both agree, the Coordinator shall furnish them with a list of CDA Recognized Coop Conciliator-Mediators from which they may select Conciliator-Mediators. The name common to their list shall be the Conciliator-Mediator. Upon selection, the Coordinator shall immediately endorse the complaint to the Conciliator-Mediator.

d) Contacting the Parties for Conciliation-Mediation.— The Conciliator-Mediator shall contact the parties to schedule the Conciliation-Mediation Conference. The Conciliation-Mediation proceedings shall immediately commence with a Conflict Coaching session, unless the parties agree to reset the Conciliation-Mediation, within a reasonable period for a valid reason.

e)  Conduct of the Conflict Coaching Session.— The Conciliator-Mediator may initially meet with the disputants separately in a conflict coaching session, with the aim of clarifying their respective issues and interests. The Conciliator-Mediator then proceeds to clarify the issues, helps them generate options, and agree on the options that best meet their needs and interests.

f) Signing of the Conciliation-Mediation Agreement.— Should the Conciliation-Mediation be successful in generating an agreement, the Conciliator-Mediator shall prepare a written agreement for the parties' approval and signature. Each shall be provided a copy of the agreement. cIADaC

g) Accomplishment of the Evaluation Forms.— To complete the process, the Conciliator-Mediator shall require the parties to fill-up an Evaluation Form for feedback on the effectiveness and quality of the Conciliation-Mediation Process. The accomplished forms shall be forwarded to the Conciliation-Mediation Coordinator for filing and monitoring.

h) Submission of the Conciliated-Mediated Settlement Agreement.— The signed written agreement shall:

1. Be submitted to the CDA for recording.

2. Be deposited at the option of the parties with the Regional Trial Court where one of the parties resides.

i) Issuance of Certificate of Non-Settlement.— If the Conciliation-Mediation is not successful, the Conciliation-Mediation Committee shall issue a Certificate of Non-Settlement within 5 calendar days from termination of conference or notice of parties' non-interest in Conciliation-Mediation. The Certificate of Non-Settlement is necessary for the dispute to be referred to the Conciliation-Mediation Committee at:

1. The Cooperative Development Authority; or

2. Other ADR providers for arbitration, private Conciliation-Mediation, counseling, social services, etc.,at the parties' option.

If the Certificates of Non-Settlement is submitted to the CDA, the Guidelines of the CDA shall apply.

SECTION 15. Nature of Proceedings.— The Conciliation-Mediation proceedings shall be conducted in an informal and private setting. The Rules of Evidence shall not apply to the proceedings.

SECTION 16. Duration of the Conciliation-Mediation Proceedings.— The Conciliation-Mediation proceedings must be completed within 30 calendar days from the date of signing of the Agreement to Mediate by both parties. With valid reason, the proceedings may be extended but not beyond 45 calendar days.

SECTION 17. Failure of Conciliation-Mediation.— The Conciliation-Mediation shall be declared as failed:

a) When no settlement is reached by the parties after 30 calendar days from the start of the conflict coaching.

b) When any or both of the parties or the Conciliator-Mediator decide to terminate the proceedings if, in his/her judgment, further efforts at Conciliation-Mediation are unlikely to lead to a resolution of the dispute.

Upon declaration of failure, a Certificate of Non-Settlement shall be issued to the parties immediately.

SECTION 18. Confidentiality of Information.— To encourage spontaneity and candor, the proceedings, from the filing of the complaint and all incidents thereto shall be kept strictly confidential, unless otherwise specifically provided by law. All admissions or statements made therein shall be inadmissible for any purpose in any proceeding, nor divulged to any other third person. HCaIDS

Any communication made by one disputant to the Conciliator-Mediator, either during conflict coaching or at anytime during the Conciliation-Mediation proceedings, which are not intended to be known by the other party or by anyone shall not be divulged. Documents, reports, position papers and affidavits submitted by one disputant must not be shown to the other without the consent of the former.

Both parties shall not rely or introduce as evidence in any other proceeding, the following:

a) Views expressed or suggestions made by the other disputant in respect of a possible settlement of the dispute;

b) Admissions made by either disputant in the course of the proceedings;

c) Proposals made by the Conciliator-Mediator;

d) The fact that the other disputant had indicated his willingness to accept a proposal for settlement.

No transcript, minutes or any record of the Conciliation-Mediation proceedings shall be taken. Any personal notes taken by the Conciliator-Mediator on the proceedings shall be destroyed after the termination of the proceedings. Such transcript, minutes or notes shall be inadmissible as evidence in other proceedings.

SECTION 19. Monitoring.— All Conciliation-Mediation Committee of all federation/union shall submit a semi-annual written report to CDA on the status of Conciliation-Mediation within fifteen days after the end of every semester. Following a prescribed CDA format, this report shall cover information regarding common issues of disputes, monthly account of complaints received, number of mediated cases, report of outcomes and referrals and an assessment of client satisfaction with the process.

SECTION 20. Evaluation.— All Conciliation-Mediation Committee every federation/union shall submit a semi-annual written report to CDA on the status of conciliation-mediation within fifteen days after the end of every semester. Following a prescribed CDA format, this report shall cover information regarding common issues of disputes, monthly account of complaints received, number of mediated cases, report of outcomes and referrals and an assessments of client satisfaction with the process.

SECTION 21. Code of Ethical Standards.— The Conciliation-Mediation Committee, Coordinator and Conciliator-Mediators shall be guided in professional conciliation-mediation practice by a Code of Ethical Standards of Practice enforced by the CDA.

SECTION 22. Training and Education for the General Membership.— The union/federation shall implement a CDA-approved continuing education program for conciliation-mediation.

SECTION 23. Advocacy.— The Union/Federation shall include:

a) A report on the status of the Conciliation-Mediation Program in its General Assembly meetings.

b) An article or articles on the availability, benefits, status and advantages of Conciliation-Mediation in its newsletters and other modes of communication to the general membership.

SECTION 24. Transitory Provisions. —

The Union/Federation shall sustain the operations of its existing Grievance/Arbitration Committee in accordance with its by-laws, provided that within two (2) years from the effectivity of these guidelines, its by-laws shall have been amended and it shall constitute its Conciliation-Mediation Committees either by election during their General Assembly or by appointment of the Board of Directors. Provided further, that within the same period, it shall endorse for training its Conciliator-Mediators in accordance with the CDA prescribed education and training program for Conciliator-Mediators. TEAcCD

The union/federation shall implement the Code of Ethical Standards of Practice promulgated by the CDA to guide the Conciliation-Mediation Committee, Conciliation-Mediation Coordinator and Conciliator-Mediators in professional conciliation-mediation practice within one (1) year from effectivity of these Guidelines.

The Unions/Federations shall use the standardized forms and evaluation instruments prescribed by the CDA.

SECTION 25. Separability Clause.— If for any reason or reasons, any portion or provision of these Guidelines shall be held unconstitutional or invalid, all other parts or provisions not affected shall remain in full force and effect.

SECTION 26. Effectivity.— These Guidelines shall take effect after the approval by the Cooperative Development Authority Board of Administrators and fifteen (15) days after the completion of their publication in the Official Gazette or at least two (2) national newspapers of general circulation. THcEaS

APPROVED: Board of Administrators Resolution No. 74, S-2007 dated March 20, 2007.

For the Board of Administrators:

(SGD.) LECIRA V. JUAREZChairperson