Alternative Dispute Resolution (ADR) Reviewer

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 5

Alternative Dispute Resolution (ADR) Reviewer

ALTERNATIVE DISPUTE RESOLUTION


based on Reobeniol

 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

Classification

Number of Parties bilateral/bi-party multilateral/multi-party

Number of Issues simple complex


involved

Extent of the complete partial


conclusion

Role of evidence in evidentiary/merit- non-evidentiary/ non-


the proceedings based merit based

Pendency of a court case-related independent


case

Applicable law domestic international foreign

Permanence of ADR ad hoc institutional


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 dispute by rendering an parties decide and 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

You might also like