NOtes in Alternative Dispute Resolution Reviewer

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The Law on Alternative Dispute Resolution: Private Justice in the Philippines

(Book Summary and Cases)

by: Marian Jane Alumbro

University of Cebu College of Law

Based on te book of Jim Lopez

Caveat: This is merely a summary of the book. You should read the book at leastonce. This reviewer does not contain some essential definitions because such are

already defined in the law, RA 92!. "o co#yri$ht infrin$ement is intended.

C!A"#$% &

#e Law's delay: An introdution

!istory of A%

"re*is+ani era*Jose %i,al noted te ustom of te inabitants of te "ili++ines

before te S+aniards reaed its sores- #ey submitted te deision of teir elders. wi tey res+eted and arried out- Aording to Jose %i,al. i t was better tat te

/--Judges were +ersons of te loality. forming a 0ury. eleted by bot +arties woknew te ase. te ustoms and usages better tan te gowned 0udge from teoutside to make is fortune. to 0udge te ase e does not know and wo does notknow te usage ustoms and language of te loality1- 2t is easy to surmise tat ouranestors +ratied A%-

!is+ani $ra*isontented +arties ad to resort to going to te SC of s+ain wi wasa 34*day tri+- "roedure for ivil ation. aktoug similar to te riminal ases. wasdefinitely more ostly and drawn*out- #e ig ost and unwarranted delays ensuredtat only te $uro+eans and te ri merants in te ity and te wealtylandowners in te rural areas ould afford te +roseution of te ivil suit-

5ur +rimitive anestors were aead of teir times6

"roblems of 0udiial delay aording to Maros (&748):

&) #e misuse of te due +roess and te abuse of legal tenialities9

) #e intervention of te +olitial +ressure in te ourt ases9

3) Seer weigt of te ourt litigations arising from develo+ment and growt9

;) ilatory tatis of lawyers9

<) =eglet and la>ity on te +art of te 0udges-

#e /Law's delay1 aording to ?lorentino "- ?eliiano:

&) An effiient and mismanaged ourt system tat fails to at +rom+tly on legalissues 9

) #e disorgani,ed state of te ourt*onneted agenies9

3) #e lak of +re+aration on te +art of te litigants and lawyers9

;) #e trigger*a++y mind frame of lawyers to engage in long*windede>aminations of witnesses9 and

<) #e lawyers +ro+ensity to elevate teir ases to te a++ellate ourts andneedlessly filing +etitions for mandamus. +roibition and ertiorari for te+ur+ose of reviewing te interloutory orders of te lower ourts-

But a more serious fator beind te /law's delay1 in te "ili++ines involves tebilling +ratie of lawyers- (Billable ours. number of ourt a++earanes) elayingtatis to onsume time-

#e oie between a litigation and settlement is lear- !e would rater ut trougte ase and solve is dis+utes swiftly and move on wit is life-

A@A= v- "2A#C5 (@% =5- &<<&)*SC ordered all affeted +arties to ommentmade by one of te +arties tat "2A#C5 ommenes arbitration +roeedings by filing

a reuest for arbitration wit te seretariat of te 2nternation amber of ommere.2nternational Court of arbitration-

"rivate Justie*te one+t is fairly reent develo+ment in te administration of 0ustie-

*"rivate /Courts1 are managed by +rivate organi,ations. alled A%+roviders to serve tose wo need to resolve most ty+es of onsumer. ivil. or+orateand ommerial dis+utes-

*"arties generally agree to enter te +rivate ourt system for one main

reason: te +ubli ourt system is too aoti and unwieldly-

*/vigilante 0ustie1

*Judges. seleted by te +arties and are +aid on an ourly or a +er sessionbasis. are for rent not for sale- #ey are +aid for teir time and teir e>+ertise. notteir e>+eted favors-

C5=: Creates a dual ourt system*one ri and one +oor- =o means a+erfet system. it offers enormous savings in time. effort. an>iety. money in te longaul-

C!A"#$%

#e litigation of onflit: A Confuian Confusion

#wo fundamental reasons for failure of trial ourts aording to %al+ Darner andSte+en $lias:



8) nuisane

are beyond te so+e of arbitration-

A%#- 3< of te Civil Code

2f related issues of te following are matters in ontroversy may not be a+able ofbeing referred to arbitration:

&) Civil Status of +ersons9

) Ealidity of Marriage9

3) And legal se+aration9

;) ?utures su++ort9

<) ?uture legitime9

4) Jurisdition of te ourts9

8) ?uture 0urisdition of te ourts-

C!A"#$% 2E

#e Settlement of dis+ute in te "ili++ines:

A ulture of "AI2I2SAMA

Many ?ili+inos readily overome onflit troug +ragmati means-

@ini @raam's teniues in %esolving Conflit:

&) 2dentify te soure of te +roblem

) A++lying te a++ro+riate +roblem solving teniues:

a- Creative visuali,ation*e>amine te reasons for te +roblem

b- Brain*storming*ome u+ wit alternatives

- Automati writing*ask inner self for reations of tose +ossibilities

d- Mental 2maging*ask inner e>+ert for advie in making oies-

Litigation is wat many ?ili+ino Lawyers do best- Students of law are trained to tinklike lawyers. but tey are not +re+ared to deal wit tey sould do best: solve teirlient +roblems and resolve teir dis+utes wit te least amount of time and e>+ense-#e key to deongest te ourts is tat students sould be trained to be sensitive toteir lient's wises to settle teir onflit or dis+ute swiftly and witout e>+ense to

ourt trials-

?ili+ino Conflit Management System

?ili+ino Ealues

&) "akikiusa+*reuest and

) "akikisama*Com+anionsi+

Iee+ ommuniation lines o+en-

&) Amor "ro+rio (self*res+et)

) "asikaban (one*u+mansi+)

3) Baala na (fatalism)

;) @antian (retaliation)

2m+ede settlement and +lays key roles in logging te ourts wit frivolous suits

tat are brougt 0ust to /Save fae1 or to give a /lesson to te o++osing +arty-

But. +ositive as+ets of ?ili+ino ulture tat may tend to mitigate te ?ili+ino+ro+ensity to litigate dis+utes:

&) Iamag*anak network (lose family ties)

) #ulungan (mutual aid)

3) Bigayan (give and take)

;) "alabra de !onor (Dord of !onor)

<) Bayanian (oo+erative endeavor)

4) !iya (same of doing someting wrong)

8) Utang na loob (reognition of a debt or obligation)

H) "aggalang (res+et or onor)

7) Iom+adre (godfater system)

&) elikadesa (/Being +ro+er1)

#e Iatarungan "ambarangay was seen by legislators as a means to deongest teourts' dokets. by enouraging te settlement of minor ases at te barangay level. wi will in turn allow te ourts to s+eed u+ te ad0udiation of already +endingases- #is again relates to te aess*to*0ustie +roblem in te ountry-

#o ensure tat te goal is met. te Loal @overnment Code makes I" mediation andoniliation a ondition +reedent to te filing of ases in ourt- 8 #oug non*om+liane does not result in 0urisditional defet tereby rendering te ourt



+roeedings void ab initio. su failure. if seasonably raised. makes te asevulnerable to a motion to dismiss on te ground of +rematurity (@ares v- CA. &4

SC%A <;)- (#AI$= ?%5M A= 5=L2=$ "%2M$% 5? #!$ IA#A%U=@A="AMBA%A=@AF "ublised by te U"*College of Law)

#y+es of Arbitration in te "ili++ines:

&) Labor Arbitration

#e Labor Code of te "ili++ines makes arbitration mandatory in asesinvolving te inter+retation and im+lementation of olletive bargainingagreements (CBA) and te inter+retation or enforement of om+any+ersonnel +oliies- #e original and e>lusive 0urisdition of wi falls witte Eoluntary Arbitrators- (Sanyo v- Cani,ares)

) Constrution Arbitration

#e reation of te Constrution 2ndustry Arbitration Commission (C2AC)usered te birt of arbitration in te onstrution industry-($5- &H)

"rivate or @overnment*entered onstrution ontrats an be submitted-

#eso v- Eera*Dile it is true tat te C2AC sall ave original and e>lusive

0urisdition over dis+utes onneted wit ontrats entered into by +artiesinvolved in te onstrution industry in te "ili++ines. te +arties must firstagree to do so before te C2AC an auire 0urisdition to arbitrate tematter-

3) Consumer Arbitration

Consumer At of te "ili++ines (%A no- 837;) +rovides for te reation of aonsumer arbitration +rogram to andle onsumer om+laints- #ey aveoriginal and e>lusive 0urisdition to mediate. oniliate ear and ad0udiateall onsumer om+laints >>>-

;) Matrimonial Mediation

is+utes between ou+les tat are ivil in nature may be te sub0et ofourt*referred mediation. sub0et to te limitations of Art- 3< of te CivilCode-

#e ff- dis+utes may not be om+romised:

a) ivil status of +ersons

b) validity of marriage or legal se+aration

) any ground for legal se+aration

d) future su++ort

e) future legitime

f) 0urisdition of te ourts-

<) Cor+orate Arbitration

Cor+oration Code +rovides for te meanism to resolve or+orate dis+utes-#e S$C an e>erise its +ower to arbitrate te dis+ute u+on written +etition by anystokolder- (read more about +owers of te S$C)

4) "artnersi+ Arbitration

#e CC states tat is beyond te autority of one or more but less tan allte +artners to enter into a om+romise or submit to arbitration a +artnersi+laim or liability- Den it omes to A%. unanimous onsent of +artners isneeded to arry out te +lant to resolve +artnersi+ dis+utes witout a ourttrial-

8) Administrative Arbitration

otrine of =on*e>austion of administrative remedies

H) $nvironmental Mediation

7) $>eutive Arbitration

&) ?oreign Arbitration

&&) Banking Arbitration

&) Mining Arbitration

&3) Maritime Arbitration

&;) 2nsurane Arbitration

&<) 2" Arbitration

&4) Seurities Arbitration

Si>*Ste+ Struture of a fae*to*fae mediation meeting

(2*!*2*M*2*S)

&) 2ntrodution and agreeing of ground rules

) !earing wat as a++ened or summari,ing te fats

3) 2dentifying te issues

;) Mutual understanding and ommuniating feelings



<) 2deal storming of a winGwin solution

4) Signing of voluntary agreement-

Causes of Court elays (Justie Myrna imaranan Eidal)

&) te misuse of te due +roess and te abuse of

legal tenialities9

) te intervention of +olitial +ressure

in ourt ases9

3) te seer weigt of ourt litigations arising

from develo+ment and growt9

;) te dilatory tatis of lawyers9

<) neglet and la>ity on te +art of 0udges9 and

4) Court vaanies-

Definition of Terms:

Alternative is+ute %esolution

2t is defined as any +roess or +roedure used to resolve a dis+ute orontroversy. oter tan by ad0udiation of a +residing 0udge of a ourt or an offier ofa government ageny. in wi a neutral tird +arty +artii+ates to assist in teresolution of issues- 2t inludes arbitration. mediation or oniliation. mini*trial. earlyneutral evaluation. or any ombination tereof-

Arbitration

A voluntary dis+ute resolution +roess in wi one or more arbitrators.a++ointed in aordane wit te agreement of te +arties resolve a dis+ute byrendering an award- 2t is te referene by mutual agreement or onsent of te +artiesof a ontroversy or dis+ute to seleted +ersons for an informal earing and e>tra* 0udiial determination and resolution- #e earing is usually eld in +rivate and tedeision of te +ersons seleted will be a substitute for a ourt 0udgment- #is avoidste formalities. delay and e>+enses of ordinary litigation-

Mediation

A dis+ute resolution +roedure in wi an im+artial tird +arty. mutuallyosen by te +arties. ats as te referee to el+ te ontending +arties settle teir

dis+ute- #e mediator. unlike te arbitrator. as no autority to make te +arties

rea an agreement- !e serves as a larifier and failitator witout ditatingsettlement- #e term mediation used under A% Lawinludes oniliation-

Mini*trial

A dis+ute resolution metod in wi te merits of a ase are argued beforea +anel reated by agreement of te +arties om+rising senior deision makers witor witout te +resene of a neutral tird +erson after wi te +arties seek anegotiated settlement-

$arly neutral evaluation

An alternative dis+ute resolution +roess wereby +arties and teir lawyersare brougt togeter early in a +re*trial +ase to +resent summaries of teir asesand reeive a non*binding assessment by an e>+eriened. neutral +erson wite>+ertise in te sub0et of te dis+ute-

Combination of Alternative is+ute %esolution

A +artiular alternative dis+ute resolution may be ombined wit te oterty+es of alternative dis+ute resolutions- #e most ommon is te mediation*arbitration

(Med*Arb)- 2n tis kind of ombination. +arties first +roeed to mediation to define tedis+ute and settle as many issues as +ossible. and ten tey engage in arbitration tosettle issues tat remain unresolved by te mediator-

Class Ation Administration

Metod of resolving te laims of a uge lass of laimants wit te least+ossible litigation e>+enditures and ourt ost troug an administrative ageny inarge of maintaining and traking statistial days as well as overseeing restitution+ayments. a++ointed by te ourt or osen by te +arties design a set of laims+roedures-

Eoluntary Settlement Conferene

0ust like mediation it is a non binding earing9 te neutral +arty is allowed toe>+ress is o+inions and views about te ase and will be obligated to formulate anadvisory o+inion to be submitted to te +arties for review and a++roval-

Mass #ort A% "ro0ets (Manville "ersonal 2n0ury Settlement #rust and A-! %obbinsbankru+ty for laims of asbestos sufferers and for laims related to te alkonsield. res+etively)

%eferee or /%ent a Judge1

a +ratiing attorney or a retired 0udge usually ats as a referee wo

onduts a /trial1 tat inor+orates te formalities of a regular ourt trial. om+lete wit a ourt re+orter and te observane of te strit rules of evidene-



Mok*Jury trial

a /mok 0ury ontrat1 sets fort all te +rovisions government te dis+ute

resolution +roess osen by tem. inluding ow te mok 0ury +roeedings will beonduted-

5mbudsman

e is a fat finder or referee ired by businesses to deal wit dis+utesinside te organi,ation- #e ob0etive is to solve +roblems and dis+utes uikly andinformally by earing and investigating dis+utes between workers-

"roess Consultation

tis is used if tere is a long*standing relationsi+ between te +arties andtey enounter +roblems in resolving te dis+utes- "roess onsultants at asounselors wo fous on te +roess of negotiation. assisting te +arties inenaning or restoring ommuniation lines -

Court*Anne>ed Mediation

means any mediation +roess onduted under te aus+ies of te ourt.after su ourt as auired 0urisdition of te dis+ute

Court*%eferred Mediation

means mediation ordered by a ourt to be onduted in aordane wit teAgreement of te "arties wen as ation is +rematurely ommened in violation ofsu agreement-

Ca+ter E

#e Mitigation of Litigation:

A Cornuo+ia of =on*litigative "roesses

Motivating ?ators tat ontribute to te rise in demand A% +roesses:

&) Avoidane of ig e>+ense of litigation

) ?ear of lawsuit will result in an outome far more adverse tan reasonablyantii+ated

3) =eed to return workers involved in te law suit to more +rodutive ativities

;) Dis to +reserve and re*establis te business or inter*+ersonal relationsi+

tat was tem+orarily disturbed by te onflit-

Med/Ar (Already defined in tis reviewer) #e +arties go troug a +ase were+arties in rafting a om+romise agreement only if tis goes down in flames. te

mediator will ange olors*may not render a binding award as an arbitrator +ursuantto te agreement- !owever. Se- of %A H84 states. /=o Arbitrator sall at as a

mediator in any +roeedings in wi e is ating as an arbitrator9>>>1 is sub0et tostrit inter+retation-

!acilitation is a less ative form of mediation- #e neutral tird +arty or failitator atsas a moderator in large meetings. ating as traffi +olie offier direting te flow oftraffi in te meeting and seeing to it tat everyone says is +iee during te forum-

Mini"trials is not a trial but a rational and voluntary manner in struturing a settlementof dis+utes between two big om+anies tat are at loggereads over stiky businessissues- #is is oterwise known as /rent*a*0udge1-

Besides. mini*trial is a voluntary. onfidential and non*binding +roedure tat effets as+eedy. ost*effetive resolution of or+orate onflit- Lawyers +resent summaries ofteir ases to ief e>eutives or oter key deision*makers re+resenting bot lients-(Linda Singer)

Mini"trial contract #is is signed by te +arties tat ontains +rovisions governingte ondut of disovery. ow earing will be andled and a few more im+ortantsti+ulations-

#lass action administration is a sensible a++roa at dis+ute resolution is to avean administrative ageny. tat is in arge of maintaining and traking statistial dataas well as overseeing restitution +ayments. a++ointed by te ourt or osen by te+arties design a set of laims +roedures and forms tat will be sent out to all telaimants-

$oluntary settlement conference is were te neutral +arty. unlike mediation. isallowed to e>+ress is o+inions and views about te ase and will be obligated toformulate an advisory o+inion to be submitted to te +arties for review and a++roval-

#onciliation uses a neutral tird +arty to larify issues in dis+ute so tat te +arties

onerned may temselves arrive at a mutually ae+table agreement-

Mass tort ADR pro%ects

Rent"A"Jud&e inor+orates te formalities of a regular ourt trial. om+lete wit aourt re+orter and te observane of te strit rule of evidene but te +arties mayagree to modify or disregard most formal rules of +roedure. evidene and +leading wit some limitations-

Moc' Jury Trial

(musdman

Process consultation te +roess onsultants ("C) differs from te meditator in tattere is no disussion of te s+eifi issues or any attem+t to solve tem- #us.

+roess onsultants are often more like ounselors wo el+ +arties to get alongbetter so tat tey an engage in better negotiation and +roblem*solving-



ADR processes in )* +overnment A&encies

,nternational #ommercial Aritration

*mall claims courts

-ei&horhood dispute centers

Re&ulatory ne&otiation

#hapter $,

The sport of -onadversarial lawyers

Leig Steinberg. /$ffetive negotiation is about e>austive +re+aration. utterlarity. eartfelt ommuniation. and a sinere. demonstrated desire to fully

understand not 0ust your own needs but te needs of oter +arty->>>1

Jesus and Sorates were two of te best negotiators of istory- 5ne is a form of

syllogism. te oter in te form of +arables-

%ok and a !ard "lae* #e rok is litigation. wi as a means of resolving adis+ute is frustrating. time omsuiming. e>+ensive and full of frition- #e ard +laeis negotiation. wi an often +rove unavailing as a means of reaing aordbetween two dis+utants. ea of wome as strong feelings about te matter-(?reund. Smart =egotiating. &77)

L2#2*@5#A#25= (Mar einer) Litigation is often used for leveraging- A lawsuit is filedand +used to te limit to fore a favorable settlement agreement-

=egotiation is a +roblem solving o+eration- (%omane Languages means /to dobusiness1)

Lawyers ave a role to +lay in at least two ruial negotiation semes:

&) is+ute or litigation settlement

) #ransation*+lanning to +reventive law negotiations

Basi =egotiation #atis

&) #e wine

Dell*timed flin at te e>at moment wen te oter +arty announes isterms-

) Silene

Staying absolutely uiet after making your offer or wen te oter +arty sayssometing tat you find disagreeable

3) @ood guyGbad*guy

Dorking wit an atual +artner to make it a++ear to te oter +arty tat

ae+ting te offer of te /good guy1 is a mu better alternative tan givingin te arser terms /bad guy1

;) Limited autority

Buying time to obtain more autority from an imaginary +rini+al or a real+erson wit greater disretion

<) %ed !erring

Creating distration to muddle te real issues

4) #rial Balloon

%aising uestions designed to +eek into te oter +arty's +osition witoutrevealing your true ob0etives

8) Lowballing*agreeing to te offer made by te oter +art and ten starti++ing away at te terms of te original offer until te offer as beenseverely altered

H) #e Bait and swit*advertising one +rodut to bring +eo+le inside te storeand finding e>uses to e>+lain te unavailability of te advertised +rodutten uikly suggest tat a different +rodut be bougt instead-

7) 5utrageous beavior*e>ibiting soially unae+table demeanor to rattle teoter +arty

&) Dritten work*+resenting adesion ontrats to disourage uestion aboutte deal

&&) #e vise*a++lying verbal +ressure to fore te oter +arty /#o do better1 tan wat is being offered and to gain onessions-

&) #rade off*s+litting te differene and seeking te mid+oint

&3) =ibble*waiting for te ma0or terms of te deal to be settled ten asking forte /minor1 onessions to be inluded in te deal

&;) ?unny Money*making matematial alulations and dividing te +aymentsover a +eriod of time to onvey te im+ression tat te oter +arty is gettinga /good deal1-

#wo ma0or ty+es of unassisted negotiations:

&) Combative =egotiator* wo will em+asi,e only is own gains at tee>+ense of te oter and em+loy ard line tatis. su as e>aggerating

laims or even treatening to abandon te disussion if e does not get is way-



) Coniliatory negotiator*wo will assume te role of a /+roblem solver1 ratertan an intimidator-

Class of negotiations

&) "osition*based negotiations often involves ard*ball metods beause it is+remised on te +resumed su+eriority of one's +osition-

) 2nterest*based negotiation is mu more andid and amiable teniue tatinvolves te willing dislosure of all germane information to te oter +artyso as to e>+lore all avenues of satisfying te needs and interests of te oterside of te least +ossible ost and at te sortest +ossible time-

Leonard Ioren and "eter @oodman's dead*lok breaking teniues (&77&)

&) Be +ositive and don't be +ut off by te good word /no1

) Agree on easier terms first and ski+ over te +oints tat are bogging you

down and ome bak to tem late

3) $m+asi,e sared goals. get bak to ommon ground and start building u+

again

;) %edue om+le>ity. break down om+liated negotiations into +iees andsolve ea +iee one at a time

<) Brainstorm wit your o++onent to generate various alternatives

4) ?ine tune your agreement so tat tere is someting tat bot of you anfind ae+table

8) "assing written +ro+osals bak and fort for omment

H) Calling a time out wen tings get roug and not going your way-

$!AUS# A% "%5C$SS$S B$?5%$ L2#2@A#25=-

NOtes in Alternative Dispute Resolution Reviewer

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