Alternative Dispute Resolution (ADR) Reviewer Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) Reviewer
ALTERNATIVE DISPUTE RESOLUTION

Based on Robeniol
 ADR ACT OF 2004 - RA 9285 An Act to Institutionalize the

Use of an Alternative Dispute Resolution System in Philippines
and to Establish the Office for Alternative Dispute Resolution,
and for Other Purposes
 Salient Features of RA 9285 applying and incorporating the

UNCITRAL Model
(Korea Techologies Co Ltd vs Lerma)
1. The RTC must refer to arbitration in proper cases
2. Foreign arbitral awards must be confirmed by the RTC
3. The RTC has jurisdiction to review foreign arbitral awards
4. Grounds for judicial review different in domestic and foreign
arbitral awards
5. RTC decision of assailed foreign arbitral award appealable
 Lawyer’s Role
1. As integral part of the judicial sytem - contribute to the promotion
of ADR
2. As part of their duties to the court - assist in encouraging the
parties to avail ADR
3. As part of their duties to their clients - explain the benefits of ADR
to them
4. Play the role of ADR provider or practioner
 What is ADR?
A system, using means and methods allowed by law and approved by
the parties, for the purpose of resolving or facilitating the resolution
of disputes and controversies between them, in an expeditious and
speedy manner, without resorting to court adjudication.
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 which neutral third party participates to assist
in the resolution of issues
 Principles of ADR
1. Promotion of party autonomy and self-determination in the

resolution of disputes
2. Recognition of ADR as an efficient tool and an alternative
procedure for the resolution of cases
3. Enlisting of private sector participation
 Objectives and Benefits of ADR

1. Speedy and impartial justice
2. Declogging of court dockets
 Features of ADR
1. a means used to resolve a dispute or controversy
2. utilizes means and methods allowed by law
3. contractual in nature
4. avoids court trial
5. usually involves the participation of a neutral third party
 Sources of ADR
1. Domestic laws and rules
2. Acts of the executive branch
3. Decisions of the supreme court
4. International laws
5. General Principles of law and equity
 Forms of ADR
1. Arbitration
2. Mediation
3. Conciliation
4. Neutral and Early Neutral Evaluation
5. Mini-trial
6. Combination
7. Innominate ADR Form
 Classification of Forms of ADR
Classificatio
n
Number of bilateral/bi-party multilateral/multi

Parties -party
Number of simple complex

Issues
involved
Extent of complete partial

the
conclusion
Role of evidentiary/merit non-evidentiary/

evidence in -based non-merit based
the
proceedings
Pendency of case-related independent

a court case
Applicable domestic international foreign

law
Permanence ad hoc institutional

of ADR
provider
 Components of ADR
1. contending parties
2. dispute or controversy
3. form of adr
4. adr provider or practitioner
 Subject Matters of ADR
All adversarial disputes and controversies
exception:
1. civil status of a person
2. validity of marriage
3. jurisdiction of courts
4. future legitime
5. criminal liability
6. those which by law, cannot be compromised
 Concluding Acts or Agreements

1. Arbitral award
2. Mediated settlement agreement
3. compromise agreement
4. waiver or quitclaim
 ADR Providers and Practitioners
 act in a quasi-judicial capacity
 decisions or awards are reviewable in a special civil action for

certiorari under Rule 65 of the 1997 Rules of CivPro
 What is Mediation?
A voluntaru 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
Exlusions:
1. court-annexed mediation : conducted under the auspices of the
court
2. court-referred mediation : mediation ordered by a court to be
conducted in accordance with the agreement of the parties when
an action is prematurely commenced in violation of such
agreement
3. conciliation conducted by the Pangkat ng Tagapagsundo
4. judicial dispute resolution : conducted by the judge of a pending
case after a failed CAM
 Classification of Mediation
1. Non-evidentiary / Non-merit based
2. Institutional or ad hoc
 Place of Mediation
GR: parties’ agreement
Default: any place convenient and appropriate to all parties
**shall be held in private unless consented not
 Stages in Mediation
1. Opening statement of the mediator
2. Individual narration by the parties
3. Exchange by the parties
4. Summary of issues
5. Generalization and evaluation of options
6. Closure
**not obligatory
 Conclusion of Mediation
1. by execution of MSA
2. by the withdrawal of any party from mediation
3. by the written declaration of the mediator that any effort would
not be helpful
 Advantages of Mediation
1. Confidentiality
2. Prompt, economical and amicable resolution
3. decision-making authority rests with the parties
 Confidential and Privileged Nature of Mediation

Communication
Privilege - A rule of law that either permits a witness to refrain from
giving testimony he otherwise could be expected to give, or permits
someone usually one of the parties to prevent the witness from
revealing certain information
Confidential Information - any info relative to the subject matter of

med or arb, expressly intended by the source not to be disclosed, or
obtained under circumstances that would create a reasonable
expectation on behalf of the source that the info shall not be disclosed
1. expressly confidential
2. impliedly confidential
 Legal Effects of Confidential and Privileged Nature

1. participants may refuse to disclose and prevent another to
disclose
2. CI not subject to discovery and shall be inadmissable in any
adversarial proceeding
3. persons involved shall not be compelled to disclose CI
4. protection under ADR continues to apply even mediator fails to
act impartially
5. mediator may not be called to testify to provide info
Exceptions (Privilege does not attach to the following

communication)
1. those contained in an agreement evidence by a record
authenticated by all parties to the agreement
2. those available to the public or made in an open
3. threat or statement of plan to commit violence
4. intentionally used to plan, commit, conceal a crime
5. offered to prove or disprove abuse et al.
6. offered to prove or disprove claim or complaint of misconduct
 Mediator
Selected by the parties
May withdraw or may be compelled to withdraw when:
1. requested by the party/ies
2. does not have the qualifications
3. impartiality is in question
4. continuation of process will evaluate ethical standards
5. safety of any one of the parties will be jeopardized
6. inability to provideeffective services
7. conflict of interest
8. others - provided by IRR
 Duties and Functions of Mediation

Prior
a. On Competence: maintain and continually upgrade professional
competence
b. On impartiality: make an inquiry re financial or personal interest
that may affect impartiality
During
a. Confidentiality
b. ensure parties understand the nature and character
c. encourage mutual respect between parties
 Role of Counsel in Mediation

1. collaborate with other lawyers
2. encourage client to actively participate
3. assist client to comprehend and appreciate process
4. confer and discuss with client the process
 What is Arbitration?
a voluntary dispute resolution proces in which one or more
arbitrators, appointed in accordance with the agreement of the parties
or rules promulgated pursuant to ADR Act, resolve a dispute by
rendering an award
 Arbitration vs Mediation
Arbitration Mediation
arbitrator decides the parties decide and

dispute by rendering an executes the MSA
award
merit/evidence based non-merit based
 Kinds of Arbitration
1. Compulsary - the process of settlement of labor disputes by a
government agency which has the authority to investigate and to
make an award which is binding on all parties, and as a mode of
arbitration where the parties are compelled to accept the
resolution of their dispute through arbitration by a third party
1. Voluntary - involves the reference of a dispute to an impartial

body, the members of which are chosen by the parties
themselves, which parties freely consent in advance to abide by
the arbitral award issued after the proceedings where both had
the opportunity to be heard
 Classification of Arbitration
1. Domestic - the components of parties’ places of business , place
of arbitration… are all located in the Phils
2. International
a. parties’ places of business is in different states
b. place of arb (AA), is outside the Phils
c. place where substantial part of the oblig is to be performed is
outside Ph
d. parties expressly agreed that the subj matter of AA relates to more
than 1 country
1. Foreign - arb is conducted outside the Phils
2. Commercial - covers matters arising from all relationships of a
commercial nature, whether contractual or not
 Objectives of Arbitration: provide speedy and inexpensive

method of settling disputes
 Arbitration Agreement (Arbi Clause / Compromissoire)

Agreement by the parties to submit to an arbitration all or certain
disputes which have arisend or which may arise between them in
respect of a defined legal relationship, whether contractual or not.
Modes of Submitting a Dispute to Arb
1. Agreement to submit - for future disputes
2. Submission agreement - existing dispute
Formal Requirement
1. in writing
2. subscribed by the parties or their reps
 Doctrine of Separability or Doctrine of Severability

Arbitration Agreement is independent of the main contract even if it
is contained in an arb clause
 Judicial Review and Court Intervention

Judicial remedies an aggrieved party to an arbitral award may take:
1. petition to issue an order to vacate the award on grounds
provided for in Sec 24 RA 876
2. petition for review (CA) under Rule 43
3. petition for certiorari under Rule 65
 Interim Measures in Arbitration (int measures of protection or

provisional reliefs
Ancillary remedies intended for the protection of the subject matter of
the dispute
1. preliminary injunction
2. appointment of receivers
3. detention of property
4. preservation of property
5. inspection of property
GR: IM are applied with and secured from the ArbTrib

Instances when ArbTrib cannot grant IM
1. AT not yet constituted
2. AT already constituted has no power to act or is unable to act
effectively
**may apply for IM with a court
 International Commercial Arbitration
International
1. parties’ places of business - in different states
2. place of arb (AA)- outside Phils
3. place of substantial part of the oblig - outside Phils
4. parties expressly agreed - SM of the arb - relates to more than
one country
Commercial
1. covers matters arising from all relationships of a commercial
nature (contractual or not)
Rules on Receipt of Written Communications

GR: based on agreement
Default: delivered to the addressee personally / last know address
Waiver of Right to Object in ICA**
Place/Venue
GR: agreement
Default: Metro Manila
Commencement of ICA Proceedings

GR: agreement
Default: when a request to be referred to arbi is RECEIVED by
respondent

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Alternative Dispute Resolution (ADR) Reviewer

ALTERNATIVE DISPUTE RESOLUTION

 ADR ACT OF 2004 - RA 9285 An Act to Institutionalize the

 Salient Features of RA 9285 applying and incorporating the

Any process or procedure used to resolve a dispute or controversy,

1. Promotion of party autonomy and self-determination in the

 Objectives and Benefits of ADR

Number of bilateral/bi-party multilateral/multi

Number of simple complex

Extent of complete partial

Role of evidentiary/merit non-evidentiary/

Pendency of case-related independent

Applicable domestic international foreign

Permanence ad hoc institutional

 Subject Matters of ADR

All adversarial disputes and controversies

 Concluding Acts or Agreements

 ADR Providers and Practitioners

 act in a quasi-judicial capacity

 decisions or awards are reviewable in a special civil action for

 Confidential and Privileged Nature of Mediation

Confidential Information - any info relative to the subject matter of

 Legal Effects of Confidential and Privileged Nature

Exceptions (Privilege does not attach to the following

 Duties and Functions of Mediation

 Role of Counsel in Mediation

arbitrator decides the parties decide and

merit/evidence based non-merit based

1. Voluntary - involves the reference of a dispute to an impartial

 Objectives of Arbitration: provide speedy and inexpensive

 Arbitration Agreement (Arbi Clause / Compromissoire)

 Doctrine of Separability or Doctrine of Severability

 Judicial Review and Court Intervention

 Interim Measures in Arbitration (int measures of protection or

GR: IM are applied with and secured from the ArbTrib

 International Commercial Arbitration

Rules on Receipt of Written Communications

Waiver of Right to Object in ICA**

Commencement of ICA Proceedings

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