Adr Fucks
Adr Fucks
ABOUT PDRC
PDRC works closely with the three branches of the Philippine government (the
executive, through the Philippine Department of Justice and the Department of
Trade and Industry; the legislative, through the Philippine Congress; and the
judiciary through the Philippine Supreme Court) in drafting substantive laws and
procedural rules on ADR as well as in information dissemination and training on
matters concerning ADR, trade law, and commerce. It publishes The Philippine
ADR Review (PADRR), a monthly newsletter.
B. PDRC ARBITRATION
1. What is arbitration?
Arbitration is a process where the parties agree to submit their disputes to a
neutral arbitrator or tribunal, who renders an award after hearing the parties. Legally,
it is defined as a voluntary dispute resolution process whereby one or more
arbitrators, appointed in accordance with the agreement of the parties, or under
rules promulgated pursuant to Republic Act No. 9285 (2004) and its Implementing
Rules and Regulations (IRR), resolve a dispute by rendering an award. [Republic Act
No. 9285 (2004) or ADR Act of 2004, Sec. 3(d); DOJ DC No. 98, s. 2009; IRR of
ADR Act of 2004), Rule 2, Art. 1.6, Sec. A (3)].
2. How is arbitration different from mediation?
Mediation is facilitated negotiation. A third-party neutral called the mediator does
not render an award but facilitates communication between the parties and assists
them in reaching a voluntary resolution of their dispute.
3. How is arbitration different from court litigation?
Arbitration is different from court litigation in many ways. The basic difference,
however, is that arbitration is a private and voluntary dispute resolution process. It is
contractual in nature and is less formal. The tribunal derives its authority to resolve
the dispute from the consent of the parties. No one may compel another to arbitrate,
unless they have previously agreed to resolve their dispute by arbitration.
4. What are some advantages of arbitration over court litigation?
Some of the advantages of arbitration over court litigation are:
-The parties may choose the arbitrators, whether local or foreign, who have the
necessary skills and technical expertise to hear and adjudicate a dispute.
-Proceedings are private and confidential.
-Compared to court litigation, arbitration is generally faster and more cost
efficient.
-Parties can choose the place of arbitration and the venue of the proceedings.
-In international commercial arbitration, the parties can be represented by local or
foreign counsel.
take longer than institutional arbitration and, in some cases, even longer than court
litigation.
C. PDRC MEDIATION
1. What is mediation?
Mediation is a voluntary process in which a mediator, selected by the disputing
parties, facilities communication and negotiation, and assists the parties in reaching
a voluntary agreement regarding a dispute [ADR Act 2004, Sec. 3(q)].
2. How is mediation different from arbitration?
Although both arbitration and mediation involve a third party neutral, the latter
plays a different role in arbitration and mediation. In arbitration, the arbitrator/s
resolve a dispute by rendering an award, whereas in mediation the mediator assists
the disputing parties to communicate and reach a voluntary agreement. Mediation is
also known as assisted negotiation.
3. How is mediation different from litigation?
Mediation is a voluntary and private dispute resolution process where both
parties agree to engage a neutral third party to help them resolve their dispute
through a voluntary agreement. In litigation, the parties may immediately commence
an action by filing a complaint before the court or a government agency even without
the consent of the other party.
Generally, the Rules of Court or the rules of procedure of the government agency do
not apply to mediation. Because of the popularity and effectiveness of mediation as
an alternative form of dispute resolution, Philippine courts and government agencies
have required mediation as a condition to a trial or hearing on the merits.
4. When should parties avail of mediation?
Mediation should be used when the parties desire the assistance of a mediator to
help them reach a win-win resolution of their dispute. Parties can refer their dispute
to mediation at any time, more particularly: (a) if their contract contains a mediation
clause stating that the parties should refer any dispute arising from the contract to
mediation or to an institution like PDRC which offers mediation services, in which
case their dispute can be referred to mediation according to the mediation clause;
(b) even if the parties did not sign an agreement to mediate before their dispute
arose, they may agree to have their dispute referred to mediation in order to reach a
negotiated solution under the guidance of a mediator; and (c) where other
proceedings have commenced (e.g., litigation or arbitration), the parties may still
agree to hold such proceedings in abeyance while they refer their dispute to
mediation.
5. What are the rules that PDRC follows for mediation proceedings?
PDRC is updating its rules on mediation. Nevertheless, PDRC may administer
mediation applying the provisions of ADR Act of 2004 and its IRR.
6. Can one party refer a case to mediation without the agreement of the other
party?
As with arbitration, mediation can only be commenced with the agreement of all
the parties.
If the parties have not agreed in advance on mediation before the dispute arose, one
party may propose mediation to the other party and the parties may enter into a
mediation agreement after the dispute has occurred.
7. What happens when mediation succeeds?
Once the parties have reached an agreement, they may put their agreement in
writing, oftentimes with the help of their counsel and the mediator, and thereafter
sign it. The mediator will review the agreement to make sure that it is consistent with
what the parties agreed to.
8. What happens if the parties fail to come to any settlement?
It may happen that the parties are unable to find a settlement to their dispute or
they reach only a partial solution, which leaves some points in dispute. Depending
on the reasons for this, the parties may wish to schedule another mediation session,
continue privately with negotiations, or turn to other modes of dispute resolution to
resolve their dispute such as litigation or arbitration. The parties should also consider
whether the terms of their contract state how they should proceed.
9. How many mediators are appointed to resolve a dispute?
Generally, only one mediator is appointed to assist the parties to resolve their
dispute.
4. How many sets of the Notice or request does a party need to file with
PDRC?
For arbitration Three sets are needed if the arbitral tribunal is composed of a sole
arbitrator, and five sets if the arbitral tribunal is composed of three arbitrators.
For mediation Three sets.
5. When may these services be availed of?
Any time a dispute subject of an arbitration or mediation clause arises.
6. What are the fees to be paid to PDRC?
The Schedule of Administrative Fee is found on pages 74-75 of the 2015 Arbitration
Rules.
7. What are the fees involved and how much?
The Schedule of Arbitrators Fees is found on pages 73-74 of the 2015 Arbitration
Rules.
8. When are these fees paid and who shoulders them?
The PDRC Secretariat will set the schedule of payment of fees. Upon the filing of
a Notice, a filing fee of PhP50,000.00 will be paid to PDRC. The PDRC Secretariat
will invite the parties to make an advance payment to cover the costs of the
arbitration or mediation, including the arbitrators and mediators fees, subject to final
determination by the tribunal (in case of arbitration) as to who should ultimately
shoulder the cost.