Adr Reviewer: Dispute in General
Adr Reviewer: Dispute in General
DISPUTE IN GENERAL
Modes of Resolving Disputes
1. UNILATERAL MODE
Action taken by one party without regard to the wishes of the
other party
a. Fight, flight or surrender, forgiveness
2. BILATERAL MODE
a. Direct negotiations between the parties to arrive at a settlement that
could be mutually beneficial
3. THIRD PARTY INTERVENTION MODE Facilitative (conciliation, mediation)
a. Evaluative or Decisional (arbitration, adjudication
Advantages of ADR
1. It is less expensive compared to the costs of litigation and other forms of conflict
resolution.
2. It enables parties to reach settlements speedily.
3. It enables the parties to know and understand the parties’ interests and concerns.
4. Parties are generally more satisfied with the agreements that they themselves
crafted.
5. Parties are able to address more concerns.
6. Parties are able to directly participate in the process, with minimum assistance of
legal counsel.
7. Relationships of the parties are often preserved.
Adjudication v ADR
Audience of One
Party Self-Determination or Party Autonomy o info to prove or disprove abuse, abandon, neglect, exploitation in a
• Focus on the parties (based on relief that parties have the ability to solve their own proceeding which a public agency is protecting the interest of an individual
problems, to make decisions about the process and solutions) (RA 9825 on party protected by law
autonomy, CAM-JDR Rules on party empowerment)
• Implications on the role of lawyers and judges (personal appearance Efficiency, Informality, and Flexibility
• by parties or their representatives with full authority required; lawyers as • more efficient and less formal than litigation
advisors/consultants rather than advocates; dominant role as combatant or • parties are asked to participate positively in the process by following ground rules,
decision-maker given up. To allow parties more opportunity to craft their own including working with other parties constructively and focusing on solutions
agreement) • goal: to keep the parties engaged; that by end of the process, mediator has helped
the parties identify their issues and interests, as well as options for moving forward
Voluntariness
• Absence of force to mediate
Relate with 3-stage process of court diversion Creativity
• no one can be forced to mediate or to accept a solution • Thinking ahead
relationship of the parties is often valued; transformative aspect of
• “mandatory” provisions in the Rules merely provide for the opportunity or venue for mediation
the parties to explore the possibility of a settlement, but not to face parties to settle • Thinking outside the box
• CAM, JDR, ACM - judiciary as a forum of last resort; after all prior earnest efforts to • parties themselves come out with solutions and are not limited to the application of
arrive at private resolution have failed strict legal principles or precedents; as a result, there is greater ownership and
compliance with agreements crafted
Neutrality
• Absence of nearness, affinity, proximity without compromising impartiality; not DRIVERS OF CONFLICTS
one’s own values
• WHAT COULD AFFECT IMPARTIALITY? financial or personal interest in the outcome 5 Drivers of Conflicts
of mediation; existing or past relationship with a party in mediation; 1. Relationship Conflicts
• Should a mediator inhibit in this case? Not necessarily. Mediator is obliged to a. Miscommunication
disclose such fact prior to accepting the mediation as soon as practicable to the b. Strong Emotions
parties c. Stereotyping
d. Repetitive negative behavior
Confidentiality 2. Data Conflicts
• to encourage parties to share information and to be more open to communicate a. Lack of Information
with the other side) b. Misinformation
• ADR law, sec 9 — party may refuse to disclose or prevent another from disclosing a c. Differing views on data’s relevance
mediation communication; information not subject to discovery and inadmissible in d. Different Interpretation of data
evidence in other proceedings 3. Interest Conflicts
• CAM JDR rules - no record of proceedings, no transcript, may take personal notes a. Perceived of actual competition over interest
but paper should be shredded. In JDR, JDR judge should not pass info obtained from b. Procedural Interest
JDR to the trial judge; this includes court personnel present during JDR c. Psychological interest
• ARBITRATION — protective orders to prevent or prohibit disclosure containing secret 4. Structural Conflicts
processes, research, info that may prejudice a party by the disclosure a. Unequal authority
• Exceptions: b. Unequal control of resources
c. Time constraints
o when law requires a disclosure
5. Value Conflicts
o where there is evidence of serious risk to self or others; threat or
a. Different ways of Life, Ideology, worldview
statement of a plan to inflict injury/commit crime
b. Different criteria for evaluating ideas
o when there is a waiver, in a record, orally during a mediation proceeding
o agreement evidenced by a record authenticated by parties to the
agreement
o available to the public, or required to be open/public
Audience of One
b. Develop integrative solutions
c. Search for ways to expand options
2. Focus on distributing the pie
a. Bargain in a win/lose or compromise-seeking fashion
Alternative Dispute Resolution System - means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a presiding judge of a court or an officer
of a government agency, as defined in this Act, in which a neutral third party participates to
assist in the resolution of issues, which includes arbitration, mediation, conciliation, early
How to Manage Conflicts (based on every driver)
neutral evaluation, mini-trial, or any combination thereof; (Sec. 3 a.)
Data Conflicts
• Bring the parties together to explain, challenge and correct erroneous data. Forms of ADR
• Surface assumptions about the parties’ assessment of data 1. Mediation
• Reach agreement on what data are important Agree on joint process to collect data 2. Arbitration
Develop common criteria to assess data
Use third-party expert a. International Commercial
b. Domestic
Relationship Conflicts 3. Construction Disputes
• Use both Effective Communication and Non-Verbal Communication 4. Other Forms of ADR
Early neutral evaluation
• Control expressions of emotion through procedures and ground rules a. Mini-Trial
• Promote expression of emotions by legitimizing feelings b. Mediation-Arbitration
• Improve communication c. Combination of ADR Forms
• Block negative, repetitive behavior by changing structure
Not Included in the Coverage (Exceptions)
Value Conflicts 1. Labor disputes
• Have the parties share information about their values 2. Civil status of persons
• Do not define the problem in terms of value 3. Validity of marriage
• Allow parties to agree to disagree on some matters 4. Any ground for legal separation
• Search for super-ordinate goal shared by all parties 5. Jurisdiction of the courts
6. Future legitime
Criminal liability
Structural conflicts
7. Those which by law cannot be compromised
• Be sure to define and clarify roles
• Modify external pressures MEDIATION
• Reallocate control of resources
• Change time constraints Mediation - a voluntary process in which a mediator, selected by the disputing parties,
• Negotiate a ratification process if authority at the table is a problem facilitates communication and negotiation, and assist the parties in reaching a voluntary
• Negotiate who needs to be present to effectively resolve the issue agreement regarding a dispute.
Audience of One
Court Annexed Mediation v. Judicial Dispute Resolution
CAM JDR
Coverage 1. All civil cases, except those which by law cannot be compromised Only if the judge of the court to which the case was originally raffled is convinced that
2. Special proceedings for the settlement of estates settlement is still possible, the case may be referred to another court for JDR.
3. All civil cases filed with a certificate to file action issued by the
Punong Barangay or the Pangkat ng Tagapagkasundo under the
Revised Katarungang Pambarangay Law
XPN:
1. civil status of persons
validity of a marriage or legal separation
any ground for legal separation
future support
jurisdiction of
courts
future legitime
2. Habeas corpus petitions
3. Cases with pending applications for Restraining Orders/
Preliminary Injunctions
Time of Referral After pre-trial and, after issues are joined, the court shall refer the parties Generally if Mediation fails
for mandatory court-annexed mediation
Cases may be referred to JDR even during trial stage
• upon written motion of one or both parties
• if granted, trial suspended and cases referred to JDR
Role 1. Facilitators (conflict managers, process experts) 1. As mediator and conciliator facilitates the settlement discussions between the
2. Effective communicators – (a.) Explain to parties the mediation parties and tries to reconcile their differences
process, the benefits of an early settlement of disputes based on
serving mutual interests, rather than legal positions. (b.) Help 2. As a neutral evaluator assesses the relative strengths and weaknesses of each
determine parties’ real interests in the disputes. (c.) Help party’s case
consider various options that may resolve the dispute through 3. makes a non-binding and impartial evaluation of the chances of each party’s
reciprocal concessions and on mutually beneficial terms success in the case and persuades the parties to a fair and mutually acceptable
3. Officers of the court while performing their duties as such or in settlement of there dispute
connection therewith
4. If no settlement is reached at the end of period given, they must
return the case to the referring judge
Duration Shall not exceed 30 calendar days without further extension within a NON-EXTENDIBLE period of 15 calendar days from notice of failure of CAM
Sanctions The court The JDR judge upon motion of appearing party or motu proprio
• upon recommendation of the mediator
• upon own initiative of the referring judge May impose sanctions
• upon motion of the interested party • upon a party who fails to appear on the date set for JDR conference
• upon a representative who appears on behalf of an individual or corporate
May impose sanctions upon a party who party without the required authorization by SPA or board resolution,
• fails to appear before the PMC unit as directed respectively
• engages in abusive conduct during mediation
Sanctions include but not limited tothose provided under Rule 18, Revised ROC and
Sanctions include relevant SC issuances
• censure, reprimand, contempt
requiring absent party to • censure, reprimand, contempt
requiring party to reimburse the appearing
reimburse the appearing party his costs - including attorney’s party his costs - including attorney’s fees for that day up to treble such costs,
fees for up to treble such costs or payable on or before the date payable on or before the date of re- scheduled setting
of re-scheduled setting
Outcome 1. If full settlement is reached (Successful Mediation) 1. If full settlement is reached (successful JDR)
the parties, assisted by their counsels, shall draft a Compromise Agreement parties, assisted by their counsels, shall draft a compromise agreement which shall be
which shall be submitted to the court for Judgment upon Compromise or submitted to the court. The court shall issue a judgment/decision approving the
other appropriate action compromise agreement, enforceable by execution with a statement to the effect that
*Note: Where compliance is forthwith made the parties shall instead the judgment/decision was achieved through JDR. The copies of these
submit a Satisfaction of Claims or a Mutual Withdrawal of the case judgments/decisions shall be submitted to PMC unit for documentation
*Note: Where full compliance with the terms of the compromise is forthwith made
2. If partial settlement is reached (Partial Success) parties shall instead submit a satisfaction of claims or a mutual withdrawal of the parties’
the parties, assisted by their counsels, shall submit the terms thereof claims and counterclaims court shall enter an order dismissing the case
(Partial Compromise Agreement) without waiting for the resolution of the
unsettled part. In respect of the unsettled part, the court shall proceed to 2. If partial settlement is reached (Partially Successful JDR)
conduct JDR proceedings parties shall, with assistance of counsels, submit its terms for the court’s approval and
rendition of judgment upon partial compromise, which may be enforced by execution
3. If no settlement is reached (Failure of Mediation) without waiting for resolution of the unsettled part. On the unsettled part, proceed to
the parties and their counsels shall appear at the pre-set date before the trial on the merits
JDR judge (who MAY now refer the case to another judge for JDR) JDR judge
conducts JDR process as mediator, conciliator, and/or neutral evaluator. 3. If JDR fails
Trial before the original court shall proceed on the dates agreed upon
CAM in Criminal Cases (Civil Aspects)
Coverage Crimes where payment may prevent criminal prosecution or may extinguish criminal liability, SUCH AS violations of:
a. BP 22
b. SSS Law (RA 1161, as amended by RA 8282)
c. PAG-IBIG Law
Crimes against property under Title 10 of the RPC, where the obligation may be civil in nature, such as:
a. Theft, Art. 308, cognizable by the 1st level courts
b. Estafa, Art. 315 (1), EXCEPT estafa Art. 315(2) and (3)
c. Other forms of swindling, Art. 316
d. Swindling of a minor, Art. 317
e. Other deceits, Art. 318
f. Malicious mischief, Art. 327
Crimes against honor under Title 13 of the RPC, where the liability may be civil in nature, such as:
a. Libel by means of writings or similar means, Art. 355
b. Threatening to publish and offer such publication for a compensation, Art. 356
c. Prohibited publication of acts referred to in the course of official proceedings, Art. 357
d. Grave Slander (Grave Oral Defamation) - of serious and insulting nature, Art. 358 (par. 1)
e. Simple Slander (Oral Defamation) - not of a serious and insulting nature, Art. 358 (par. 2)
f. Grave Slander by Deed - of serious and insulting nature, Art. 359 (par. 1)
g. Simple Slander by Deed - not of a serious and insulting nature, Art. 359 (par. 2) h.
Incriminating innocent persons, Art. 363
i. Intriguing against honor, Art. 364
Libel under RA 10175 (Cybercrime Prevention Act), where the liability may be civil in nature
Criminal negligence under Title 14, RPC, where the liability may be civil in nature
Intellectual property cases, where the liability may be civil in nature
XPN:
Except those cases mentioned above (1-6), criminal cases subject to the Rules on Summary Procedure shall not be referred to mediation.
Time of Referral • Unless a settlement is reached earlier in the pre-trial/ pre-conference
• Only after the conduct of the arraignment and pre-trial/ preliminary conference
• The Court shall serve the Order of Referral immediately after the arraignment and pre-trial/preliminary conference
Duration Shall be terminated within a NON-EXTENDIBLE period of 30 calendar days from the date of referral by the court to the PMC unit.
After the lapse of the mediation period or if mediation fails, trial shall proceed implication on JDR
Outcomes 1. If settlement is reached on the civil aspect of the criminal case
parties, assisted by their counsels, shall draft the compromise agreement which shall be submitted to the court for appropriate action
action on the criminal aspect of the case will be determined by the public prosecutor, subject to appropriate action of the court
2. Mediation fund (Trust Fund) - amount collected as mediation fees from where
disbursements are made for the authorized expenditures
3. Mediator’s fee - the authorized amount paid from the mediation fund (Trust
Fund) for services rendered by a mediator
Audience of One