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ADR Reviewer

Alternative Dispute Resolution Reviewer Response of Judiciary to the Problems of


Midterms. Delay.

APRIL 2, 2015YOURLADYLAWYER Requirements of conducting pre-trial


ALTERNATIVE DISPUTE RESOLUTION conference
By. Atty. Gabriel Robeniol Utilization on different modes of
Chapter 1: Introduction discovery
Historical Rule: Proscription against forum shopping
Judicial and Legislative trends:
Utilization of alternatie means and
methods implemented in or outside the court
The supreme court encourages the
trial system
use of arbitration through Philippine
Civil Code of the Philippines:
Mediation Commission or through
30 August 1950
Judicial Dispute Resolution (JDR)
Contains provisions of/or on
compromise arbitration. Legislative Action:

Encourages litigants to agree upon fair Special domestic legislation passed the
prescription of arbitration, mediation and
compromise and authorize arbitration
19 June 1953 conciliation.

Enactment of arbitration law G:


Labor Code of the Philippines
Republic Act. 876
National Labor Relations Commissions

20 May 1965 Concerning:

Convention on the recognition and Unfair Labor Practice

enforcement of foreign arbitration / arbitral Termination of Employment


awards Conditions of Employment
Damages arising from E E
Philippine law has acknowledged the
Level Arbitration
international arbitration as system of
Executive Branch Contribution:
setting commercial dispute.
CIAC Construction Industry Arbitration
UNCITRAL Commission Enacted during 4 Feb 1985
Model law which the Philippines concerning constriction dispute
committed its adherence. 23 August 1998 rules of procedure
Judiciary Action governing construction arbitration
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ADR Reviewer

19 November 2005 CIAC revised rules


of procedure governing construction
arbitration
22 March 2010 rules on ADR for The Lawyers Role

dispute between national government Contribute to the promotion of ADR


agencies: amicable settlement dipute Assist courts in encouraging the parties
to avail of alternative means of dispute
THE ADR Act of 2004 resolution
Dispute resolution law Explain the benefits of the ADR system.
An act to institutionalize use of an Chapter 2: Fundamentals of Alternative
alternative dispute resolution system in the Dispute Resolution
Philippines and to establish the office for
alternative dispute resolution and for other Alternative Dispute Resolution
purpose. Expeditious and speedy manner
28 April 2004 Methods of resolving dispute outside the
court trial system
Philippines as the Venue of ICA Includes similar process in quasi
judicial agencies
Any process the used to resolve a
RTC must refer to arbitration in
dispute or controversy
proper case
Neutral third party
Foreign Arbitral awards must be
State Policy in ADR
confirmed by RTC
ADR act of 2004 declared the state
policy
The RTC has jurisdiction to review Promote party autonomy resolution of
foreign arbitral awards
dispute
Freedom of the party to choose or make
Grounds for judicial review their own arrangement to resolve dispute
different in Domestic and Foreign arbitral Provides solutions that is less time
awards. consuming, less confrontational procedure
of goodwill and lasting friendship
Wave of the future in international
RTC Decisions of assailed foreign
relationship
arbitral awards appealable: CA, certiorari
Principles of ADR
Promotion of party autonomy and self
determination in dispute resolution
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ADR Reviewer

Recognition of ADR as an efficient tool person to convince them to come into an


and an alternative procedure for the agreement; non binding between eh parties.
resolution of cases Conciliation conciliation of dispute in
Enlisting a private sector participation an unantagonistic manner
Neutral lawyers are brought to present
Objectives and Benefits of ADR the summary of the case
Speedy and impartial justice Early Neutral availed of in pre trial

Declogging of court dockets. case

Features of ADR Mini trial merits of the case ar

ADR means used to resolve a dispute or argued in front of a panel

controversy Any combination of the foregoing

Exceptions: intention is to cause delay Any other ADR forms


or suspend the proceeding Classification of Forms of ADR
ADR utilize means and methods allowed As to the number of parties:
by law Bi party one or two parties
ADR is contractual in nature Multi Party two or more
ADR avoids court trial AS to the number of issues involve:
ADR usually involves the participation of Simple one issues involve
neutral third party Complex two or more issues
Sources of ADR
As to the extent of conclusion
Domestic Laws and Rules
Complete all issues involve is resolve
Constitution
Partial only two or three issues involve
Civil Code
are resolved but not all
Arbitration Law
As to the role of evidence in the
Acts of the Executive Branch
proceedings
Decisions of the Supreme Court
Evidentiary
International Law : UNCITRAL
Non merit based
General principle of Law and Equity
As to the pendency of the court case
Forms of ADR
Case related when there is a case
Arbitration arrangement of the and
involved
abiding by the judgment or selected person
Independent
in dispute; binding between the parties
AS to the applicable law
Mediation voluntary agreement
Domestic when the place of business
between the parties with the help of third
and arbitration is in the Philippines
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ADR Reviewer

International when the place of Compromise or compromise agreement


business involved two states and arbitration avoidance of litigation or to put an end to
is outside the Philippines the one already existing
Foreign when the place of business is Waiver or quitclaim a statement
outside the Philippines and the arbitration is renouncing any right or claim
outside the Philippines. ADR providers or practitioners
As to the permanency of the ADR Preferences of ADR
provider Office for ADR
AD HOC temporary ADR agency attached to DOJ
Institutional permanent Executive Director appointed by the
president upon recommendation of
secretary of justice
Components of ADR
Contending parties
Dispute or controversy
Form of ADR Chapter 3: Mediation under ADR Act of 2004

ADR provider or practitioner


Mediation
Subject matter of ADR
Voluntary process in which a mediator is
Adversarial dispute and controversy
selected by the disputing parties
Exception:
Facilitates communication and
Civil Status of persons
negotiation
Validity of marriage and any other forms
Assist the parties in reaching voluntary
of legal separation
agreement
Jurisdiction of courts
Court Annexed Mediated
Future legitime Mediation conducted under the auspices
Criminal Liability of the court
In general which the law cannot be Court Referred Mediation
compromise Ordered by the court to be conducted by
Basic Concepts of ADR the agreement of the parties
Concluding Acts or Arguments Mediator
Arbitral Award final decision of Person conducting mediation
arbitration on awarding issue or controversy Mediation Practitioner
Mediated Settlement agreement Parties in mediation
contract executed by the parties Non Party participants
Witness, resource person, or expert
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ADR Reviewer

Classification of Mediation Closed and concluded


Non evidentiary or non merit based Execution of settlement agreement
mediated Withdrawal of any party from mediation
Focuses on facilitation or Written declaration
communication and negotiation between the Advantages of Mediation
parties in encouraging to voluntarily settle Confidentiality in Mediation Process
dispute
Prompt, economical amicable dispute
Institutional
resolution
Administered and conducted by or under
The decision making authority rest upon
the rules of mediation institution
the parties
Ad Hoc Confidential and Privileged nature of
Other than institutional Mediation Communication
All information of evidence is privileged
To be bound by the internal mediation
and confidential in character
and the administrative policies of such
Confidential Information
institution
Any information relative to the subject of
To have such rules govern the mediation
mediation or arbitration
of the dispute and for the mediator
Expressly intended not to be disclosed
Expressly Confidential
Place of Mediation Impliedly confidential
Two disputing parties are free to agree Creates reasonable expectations
the place\ Confidential Information Includes:
In the absence default is convenient to Communication
and appropriate to all the parties Oral or Written statements
Stages of Mediation Pleadings, motions, manifestations
Opening statement of mediator Legal effects of Confidential and privileged
Individual narration by the parties nature
Exchange by the parties A party may refuse to disclose
Summary issues Not subject to discovery and
Generalization and evaluation of options inadmissible in adversarial proceedings

Closure People cannot be compelled to

Mediation shall be held in private disclose information

Exceptions: Parties consented that there be Parties to the dispute


other persons Mediation
Counsel for the parties
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ADR Reviewer

Non Party Settlement was reached


Secretary, stenographer, assistants Permitted to be disclosed
Any persons who obtains information Waiver of Confidentiality

Continues even the mediator fialed to Expressed

act impartially Implied


Mediator may not be called to testify The Mediator
Exceptions based on agreement, Nature of OADR list and freedom to select
Proceedings, Crime or Social Justice mediators
Contained in an agreement evidence by
a record authenticated by all parties to Withdrawal Requirements
agreement The party requested
Made public or required by the courts to Lacks qualifications, training and
make it public experience
A threat or statement of plan to inflict Mediators impartiality is in question
bodily injury Violation of ethical standards
Communication on attempt to commit a Safety will be jeopardized
crime
Unable to provide effective services
Used to approve or disprove neglect,
Conflict of interest
abandonment or exploitation
Other instances
Used to sought or complaint against
misconduct
Duties and Functions of Mediationr
Non party base agreement
Prior to Mediation
Exceptions based on Public Policy
Upgrade professional competencies
Court proceeding involving a crime or
Reasonable inquiry
felony
During the Mediation
Avoid liability on contracts arising from
mediation Confidential

Limited use of External Evidence Consent and self determination

Only such portion of the communication Promotion of respect and control of


necessary for the application of the abuse and process
exception can be admitted in evidence Mediators Cost and Fees
Privileged Mediation Ad Hoc free to make their own
Bound by the confidential privileged arrangement as to the mediation of cost and
Exception fees

Termination of mediation Mediated Settlement Agreement


Compromise Agreement
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ADR Reviewer

Successful Mediation Arbitrator


Roles of counsel in Mediation Person appointed to render an award
Collaborative May use his own discretion in the
Encourage performance of his function

Assist Arbitration agreement


Agreement by the parties
Confer
Chapter 4: Arbitration in General In respect of legal relationship

Arbitration Essential elements

Process which one or more arbitrators Consent of the parties freely given

appointed in accordance with the agreement Cause of consideration


of the parties Lawful object
It is the arbiter that decides the dispute Two modes in submitting dispute
and renders an arbitral award to conclude in Agreement to submit in arbitration
arbitral proceedings Submission agreement
Kinds of Arbitration
Arbitration Agreement
Voluntary
Shall be in writing and subscribed by the
Reference of a dispute to an impartial parties to be charged
body May be included in arbitration clause or
Members are chosen by the parties compromise
themselves Arbitration Clause
Compulsary arbitration Must be liberally construed consistent
Settlement of labor dispute by the with the policy of encouraging alternative
government agency which has the authority dispute resolution method
to investigate Doctrine of Separability
Domestic Arbitration agreement is independent of
International the main contact even if it contained in

Foreign Arbitration clause

Same concept lang naman to nung nasa Due process in Arbitral proceedings

chapter two na foreign domestic at international Principles of administrative due process

dapat alam nyo nay un. equally apply to arbitral proceedings

Commercial Arbitration matters arising Judicial Review and Court intervention

from all relationship of commercial in nature Proper RTC


Review Court of Appeals Rule 43 ROC
Policy on Arbitration Certiorari proper court Rule 65 ROC
Speedy and inexpensive methods Interim Measures in Arbitration
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ADR Reviewer

Allows the application of a party to a exercise of their privileged of party


judicial authority for interim conservatory autonomy and self determination
Allows filing of provisional interim Default Rules

measures with regular courts whenever the provisions of the IRR


arbitral tribunal has no power to act Applicable only in the absence of or in
effectively default contained in the ff: (1) an agreement
Chapter 5: International Commercial in force between the Philippines and other
Arbitration under the ADR Act of 2004 and its state; (2) an agreement between the parties
IRR on the applicable rules
International Commercial Arbitration Rules of Interpretation
Instances of Occurrence of International Interpretation of the ADR act
Arbitration due regard to the policy of law favouring
Parties and Places of business is in arbitration
different state Interpretation of the model Law
Place of arbitration provided in the need for uniformity of its interpretation
agreement where parties have their
Interpretation of the IRR
business is outside the Philippines
Same policy
Substantial part of obligation is to be
Party autonomy
performed outside the Philippines
Freedom of the parties
Subject matter of agreement relates to
Reference to an agreement
more than one parties
Commercial Arbitration Rules applicable to claims and counter
claims
Commercial relationship in nature
Rules of Receipt of Written Communication
Contractual or not
in ICA
Foreign Arbitration
The subject matter of the dispute may
International commercial arbitration is
be located in different stage
outside the Philippines
Rules communication is deemed received
Coverage of IRR Provisions of ICA
Delivered to the address personally or at
Applicable only to international
his place of business, habitual residence or
commercial arbitration
mailing address
The rules of procedure for international
If there is none, delivery by registered
commercial arbitration provided for under
mail or attempt to deliver to last know place
the ADR act or its IRR may also be applied
of business
for international commercial arbitration
Waiver of the Rights to Object in ICA
outside the Philippines if they are adopted
as rules of procedure by the parties in the
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ADR Reviewer

Arbitration is different from mediation in Limited purpose of disclosing to the


that the latter is not merit or evidence based court relevant documents in cases where
and therefore not procedurally driven resort to the court is allowe
Limitations Due Process in ICA
ADR act and its IRR is limited to the IRR mandates that the parties shall be
application of rules on the waiver in the treated equally and shall be given full
mediation proceedings to wavier of opportunity
confidentiality and privilege only Reasonable opportunity
IRR expands the application of the rules Due Process
on waiver to include non compliance with Complied if parties are given opportunity
the rules or requirements to be heard and present evidence
Doctrine of Estoppel Place if ICA
Objectives to non compliance with the Default place MANILA
rules or any requirements under the Place chosen by Parties
arbitration agreement must be raised without
Commencement of ICA proceedings
undue delay or within the time prescribed
Date requested by the parties
therefore, failing which, the right to object is
Default date date of request for that
deemed waived
dispute
Estoppel in pais
Language in ICA
Happens when one, by his acts,
Parties shall determine the language
representation, or admissions, or by his own
Default English
silicon when he ought to speak out,
Applicable Law in ICA
intentionally or culpable negligence, induces
another to believe certain facts to exist and Governing law generally is substantive

such belief in a manner that he will be law

prejudiced if the former is permitted to deny Substantive Law

the existence of such facts Law or legal system applicable to


complete resolution of dispute
Conflicts of Law/Private International Law
Confidentiality in ICA Part of municipal law or state which
General Rule directs courts and administrative agencies,
In the case of mediation, proceedings, when confronted with a legal problem
records, evidence, and arbitral awards are involving a foreign element, where they
confidentia should apply a foreign law
Exceptions: Appointing Authority in ICA
Consent of the Parties He person or institution named in the
arbitration agreement
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ADR Reviewer

Functions Procedure incase the Arbitrator fails to act in


Take necessary measurements ICA

Decide on the challenge Mandates terminates

Consider the qualifications Withdraws


Parties agrees in the termination
The default appointment of an arbitrator Jurisdiction of Arbitral Tribunal in ICA
shall be made by the National President of
Jurisdiction
the Integrated bar of the Philippines.
The right to act whether or the power to
Arbitrators and Arbitral Tribunal in ICA and authority to hear and determine cause
Default number of arbitrators is three Jurisdiction over subject matter
and is due to their appointment Subject matter of the controversy is
Default Procedure conferred by law
3 arbiter each party shall appoint one Two Instances

Sole arbiter shall be appointed by the Lack of jurisdiction

parties Excess of jurisdiction


The decision of the appointing authority Jurisdictional review of Jurisdictional Issue
on this matter shall be immediately executor Consider challenge as preliminary
and shall not be subject to a motion for question
reconsideration or appeal Defer resolution
Factors in Appointing Arbitrators
Qualifications Jurisdiction over the pArties
Considerations Pre causal agreement
Advisability of appointing an arbitrator of Interim Measures in ICA
a nationality Request shall be in writing transmitted
Grounds for changeling an Arbitrator in ICA by reasonable means
Impartiality Relieve may be granted to prevent
Possession of the qualifications irreparable loss, security, preserve evidence,

Procedure for the challenge in ICA compel

Default procedure
Legal Representation in ICA
Sending of written agreement 15 days
A person may be represented by any
after becoming aware of the constitution of
person of his choice
arbitral tribunal
Determination of Rules of Procedure
The parties may request the appointing
Statement of claims
authority within 30 days to challenge
tribunals Statement of Defence
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ADR Reviewer

Default of the parties Default in the arbitration agreement


Amendment of claims or defences Violation of due process
Hearings (1) court assistance in taking Lack or excess of jurisdiction on the part
evidence (2) subpoena (3) expert of the arbitral award
Conclusion / closure Violation of the arbitration agreement
Requisites for an Arbitral Award to be Final Venue:
Rendition of the arbitral award RTC
Hearing on the qualification
Expiration of the periods Requirements

Cost in ICA Place of arbitration

Fees on arbitral tribunal Assessed, reviewed or enjoinment is

Travel located
Residence ir place of business
Cost of expert advice
NCR
Travel and other expenses of witness
Time for filing the petition for Setting Aside
Cost for legal representation
3 mos
Fees and expenses of appointing
90 days
authority
Correction and Interpretation of ICA award
Recognition and Enforcement of Foreign
Quantification of the cause and the
Arbitral Awards
determination of the party liable therefore or
the division between the parties
Recognition
Correction of typographical and similar
Means by which a Philippine courts give
errors initiated by a parties
legal acknowledgment to a foreign arbitral
Interpretation of the awards
award
Correction of typographical error
Confirmation
initiated by the Arbitral Tribunal
Judicial affirmation of a domestic arbitral
Additional award
award
Setting Aside an ICA AWARD
Enforcement
Execution and implementation
Requirements