Title 390819957-Alternative-Dispute-Resolution-Notes-Summaries-of-related-literature.pdf ✅

Alternative Dispute Resolution d.m.g. 2018 j.d. Notes based on Judge J. Humiding’s Outline UC Law 1 I. Fundamentals of the ADR Law RA 9285: AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION AND FOR OTHER PURPOSES. Definition of Terms ADR System is any process of 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, in which a neutral third party participates to assist in the resolution of issues, which includes: a. arbitration; b. mediation; c. conciliation; d. early neutral evaluation; e. mini-trial; f. or any combination thereof. Arbitration is a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or the rules, resolve a dispute by rendering an award. Court-Annexed Mediation is any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute. Court-Referred Mediation is 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. Early Neutral Evaluation is an ADR process wherein parties and their lawyers are brought together early in a pre- trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute. Mediation is a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement. Mediation-Arbitration or Med-Arb is a two-step dispute resolution process involving both mediation and arbitration. Mini-trial is a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement. 1 Chapters 1 & 2, pp. 1-26 Application Exceptions: RA 9285 shall not apply to resolution or settlement of the following: LC-VAJ-FCC a. labor disputes covered by the Labor Code and its IRR; b. civil status of persons; c. validity of a marriage; d. any ground for legal separation; e. jurisdiction of courts; f. future legitime; g. criminal liability; h. disputes which by law cannot be compromised; and i. disputes referred to CAM. Robeniol Notes1 Broad definition of ADR: (a) It is a system; (b) Using means and methods allowed by law and approved by the parties; (c) For the purpose of resolving or facilitating the resolution of disputes and controversies between them; (d) In an expeditious and speedy manner; (e) Without resorting to court adjudication. Principles of ADR 1. Promotion of party autonomy and self- determination The parties have the freedom to choose the form, procedure, practitioner, venue, and other terms of the proceedings. 2. Recognition of ADR as an efficient tool and an alternative procedure As an alternative system, it does not altogether do away with the trial system. It is a different, separate, and independent means of settling disputes. 3. Enlisting private sector participation ADR calls on the services of third parties who do not necessarily dispense public service. Objectives and Benefits of the ADR 1. speedy and impartial justice 2. declogging of court dockets Features of the ADR 1. ADR is a means used to resolve a dispute or controversy.
Alternative Dispute Resolution d.m.g. 2018 j.d. Notes based on Judge J. Humiding’s Outline UC Law 2 A procedure that doesn’t lead to a final conclusion and only serves for a temporary cessation is not ADR. 2. ADR utilizes means and methods allowed by law. The ADR Law doesn’t limit the allowable forms. Any form may be recognized as long as it is not contrary to law, morals, good customs, public order, and public policy. 3. ADR is contractual in nature. The parties are free to agree on the procedure. But in order to be a valid form of ADR, the 3 essential requisites of a contract (consent, object certain, and cause) should be satisfied. a. Pre-causal consent – when the parties to the contract stipulate that any dispute that will arise from the contract shall be resolved by arbitration. b. Present causal consent – when the parties to an existing controversy voluntarily submit themselves either to arbitration or mediation. 4. ADR avoids court trial. 5. ADR usually involves the participation of a neutral third party. Sources of ADR Rules 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 A. Arbitration - It is a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties resolve a dispute by rendering an award. B. Mediation - It is a voluntary 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. Parties to a controversy are convinced by a mediator to settle through a voluntary agreement called “Mediated Settlement Agreement”. C. Conciliation - It is the adjustment and settlement of a dispute in a friendly, unantagonistic manner. D. Early Neutral Evaluation - It is an ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute. E. Mini-trial - It is a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third party after which the parties seek negotiated settlement. F. Other Forms of ADR - Any arrangement agreed upon by the parties that satisfies the requisites of ADR. It must comply with the essential requisites of a valid contract and must not be contrary to law, morals, good customs, public order and public policy. Agreements to resolve disputes based on the outcome are equivalent to gambling and considered void. Classification of Forms As to number of parties, it could be bilateral or multilateral o Bilateral – when there are 2 contending parties o Multilateral – when there are more than 2 contending parties As to number of issues, it could be simple or complex o Simple – only one issue is involved o Complex – two or more issues As to extent of the conclusion, it could be complete or partial o Complete – all the issues involved are resolved o Partial – only one or some, but not all, are resolved o (But in no case should ADR merely suspend or defer the resolution of the dispute.) As to the role of evidence in the proceedings, it could be merit based or non-merit based o Merit-based or evidentiary – when presentation of evidence and evaluation of merits are required. As to the pendency of a court case, it could be case related or independent o Case-related – conducted in connection with or as a prerequisite to trial (e.g., CAM, CRM) o Independent – conducted irrespective of any pending court case As to the applicable law, it could be domestic, international, or foreign o Domestic – if the parties’ place of business, place of arbitration, and place of the performance of the obligation involved or subject matter of the dispute, are in the Philippines o International – any of the following: a. When the parties’ place of business are in different states b. When the place of arbitration is outside the Philippines c. When the place where a substantial part of the obligation is to be performed; or the place where subject matter of the
Alternative Dispute Resolution d.m.g. 2018 j.d. Notes based on Judge J. Humiding’s Outline UC Law 3 dispute is most closely connected, is outside the Philippines d. When the parties agreed that the subject matter of the dispute relates to more than one country o Foreign – when conducted outside the Philippines As to permanence, it could be ad hoc or institutional o Ad hoc – if the existence of the ADR provider is only temporary, for a particular dispute or controversy o Institutional – if the ADR practitioner’s existence is permanent in character and not dependent on any dispute Components of the ADR 1. contending parties 2. dispute or controversy 3. form of ADR 4. ADR provider or practitioner Subject Matter of ADR o General rule: All adversarial disputes and controversies can be the subject matter o Exceptions: a. Civil status of persons b. Validity of marriage or any ground for legal separation c. Jurisdiction of the courts d. Future legitime e. Criminal liability f. Those which, by law, cannot be compromised (e.g., Art 2035 of NCC, those against public policy) Basic concepts A. Concluding Acts ADR proceedings are completed upon the execution of a concluding act or agreement: • In mediation – a mediated settlement agreement or a compromise agreement • In CAM – a judgment based on compromise • In conciliation – a waiver and quitclaim • In arbitration – arbitral award (arbitral decision), award on agreed terms, consent award, award based on compromise B. ADR Providers or Practitioners 2 Summary by Group 1 (Jura Obra, et al.) By nature of their functions, the ADR practitioners act in a quasi-judicial capacity. Hence, as a general rule, their decisions are reviewable in a special civil action for certiorari under Rule 65, on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. But in domestic arbitration, the arbitral tribunal’s decision to defer the resolution of the issue of its jurisdiction cannot be challenged by a MfR, appeal, or certiorari. The remedy of the aggrieved party is to proceed with the arbitration, and later on, once a final arbitral award has been rendered, petition the court to set aside the award on the ground that the tribunal exceeded its powers. C. Preference for ADR Even before the enactment of RA 9285, there is a clear preference for ADR as seen in Art 2030 of the NCC, which instructs the court to suspend the proceedings if it is possible to settle the dispute using ADR. Hence: • Before or during pretrial, either party may file a Motion to Refer the Parties to ADR. • After pretrial, the parties may jointly file a Motion to Suspend or Motion to Dismiss, to allow a compromise agreement. • In case a settlement agreement materializes, either party may submit it to the court where the action is pending, and move for its approval. It will be approved if the court finds that it is not contrary to law, morals, public policy, or public order. ADR in the Philippines: Wave of the Future or the Road Less Traveled? (Martha Lois V. Cordia)2 A. Problem Areas Clogged docket courts, expensive litigation fees, slow-paced court proceedings and rigid and adversarial system of courts characterize the current justice system of the Philippines. Most recent statistics show that there are about 1.2 million cases in the country and only 1,620 judges to resolve them. Minor cases take about 2-3 years to be resolved, whereas as major ones drag on up to 10 years. Per the Constitution, the collegiate courts are given 12 months to resolve its cases, while the Supreme Court has 24 months. The long, tedious delays are contrary to the constitutional mandate to a speedy disposition and
Alternative Dispute Resolution d.m.g. 2018 j.d. Notes based on Judge J. Humiding’s Outline UC Law 4 administration of justice. It has adversely affected the lawyers, the litigants, and the justice system. B. ADR as a Better Alternative to Litigation 1. party autonomy 2. speed and cost 3. privacy and confidentiality 4. awards are final and binding C. Procedure in ADR Methods 1. The arbitration commences upon demand of one party to the other to submit a controversy to arbitration. If there is no arbitration clause in the contract, the parties may execute a submission agreement to arbitrate. 2. The demand shall be served upon the other party in accordance with the contract. 3. The parties will appoint the arbitrator tribunal in accordance with the contract. If the contract provides no guidance, each party will appoint an arbitrator and the two appointed arbitrators will select a third arbitrator. The chosen arbitrator must disclose the circumstances that give justifiable doubts to his impartiality or the fact that he does not possess the necessary qualities. 4. The time and place of the hearing will be set and must cause a notice of it to be given to the parties 5. The arbitrator shall act as the sole judge in assessing the materiality and relevance of the evidence offered. He is not bound to conform to the rules of evidence but must observe the agreement among the parties 6. The arbitrator will render an award. D. Salient Features of the ADR Law 1. Jurisdiction An arbitral body, once constituted, has the power to examine the question of its own competence. 2. Venue and Place As a general rule, parties are free to agree in the place or venue. In International Commercial Arbitration, parties could also choose the State where the arbitration will be conducted. This is to avoid the adverse influence of each other’s national laws. If the parties don’t choose, the arbitrator tribunal will choose the venue. In the absence of both, it will be in Metro Manila. 3. Court Involvement The courts generally have a limited role in arbitration. Exceptions: a. Courts may grant interim and provisional reliefs during the pendency of arbitral proceedings before the arbitral is constituted or if the tribunal has no power to act or is unable to act effectively. b. The RTC could decide whether the arbitral tribunal has jurisdiction after the arbitral tribunal has ruled against the plea. c. Recourse to a court against an arbitral award may be made only by an application for setting aside an award. d. Awards by foreign tribunals, must be filed in the RTC for recognition and enforcement thereof in accordance with the rules to be promulgated by the Supreme Court. Once application is confirmed, it shall be enforced in the same manner as final and executory decisions of courts of law in the Philippines. 4. Recognition and Enforcement of Awards Compared to foreign judgments, arbitral awards in International Commercial Arbitration are readily enforced pursuant to the New York Convention of 1958. Foreign judgments are generally not enforceable in other jurisdictions except in cases of reciprocity and comity. Arbitral awards are more readily enforceable. The original or duly authenticated copy of the award and the arbitration agreement must be filed in the RTC and approved for it to be enforceable in the country. E. Conclusion The passing of RA 9285 signified the promotion of ADR, but its implementation is still in its initial stage. ADR methods are still considered as the road less traveled. (The article was published in 2007.) The reasons are: • In the domestic setting, there is a lack of awareness. • In the international setting, the Philippines is not yet equipped to be an effective venue for international commercial arbitration because: (1) the centers for ADR are still young and yet to gain a strong foothold in the field; and (2) the courts’ unbridled intervention prevents the parties from choosing the Philippines as the venue for arbitration. Only when more parties support ADR and more courts encourage its use can ADR be considered the “wave of the future”. II. Mediation in General Definition It is a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement. Scope