The Law on Alternative Dispute Resolution: Private Justice in the Philippines

(Book Summary and Cases)

by: Marian Jane Alumbro

University of Cebu College of Law

Based on the book of Jim Lopez

Caveat: This is merely a summary of the book. You should read the book at least once. This
reviewer does not contain some essential definitions because such are already defined in the
law, RA 9285. No copyright infringement is intended.

CHAPTER 1

The Law’s delay: An introduction

History of ADR

Pre-hispanic era-Jose Rizal noted the custom of the inhabitants of the Philippines before the
Spaniards reached its shores. They submitted the decision of their elders, which they respected
and carried out. According to Jose Rizal, it was better that the “..Judges were persons of the
locality, forming a jury, elected by both parties who knew the case, the customs and usages
better than the gowned judge from the outside to make his fortune, to judge the case he does
not know and who does not know the usage customs and language of the locality”. It is easy to
surmise that our ancestors practiced ADR.

Hispanic Era-Discontented parties had to resort to going to the SC of spain which was a 36-day
trip. Procedure for civil action, akthough similar to the criminal cases, was definitely more costly
and drawn-out. The high cost and unwarranted delays ensured that only the Europeans and the
rich merchants in the city and the wealthy landowners in the rural areas could afford the
prosecution of the civil suit.

Our primitive ancestors were ahead of their times!

Problems of judicial delay according to Marcos (1967):

1) The misuse of the due process and the abuse of legal technicalities;

2) The intervention of the political pressure in the court cases;

3) Sheer weight of the court litigations arising from development and growth;

4) Dilatory tactics of lawyers;

5) Neglect and laxity on the part of the judges.

The “Law’s delay” according to Florentino P. Feliciano:

 1) An efficient and mismanaged court system that fails to act promptly on legal issues ;

2) The disorganized state of the court-connected agencies;

3) The lack of preparation on the part of the litigants and lawyers;

4) The trigger-happy mind frame of lawyers to engage in long-winded examinations of

witnesses; and

5) The lawyers propensity to elevate their cases to the appellate courts and needlessly
filing petitions for mandamus, prohibition and certiorari for the purpose of reviewing
the interlocutory orders of the lower courts.

But a more serious factor behind the “law’s delay” in the Philippines involves the billing practice
of lawyers. (Billable hours, number of court appearances) Delaying tactics to consume time.

The choice between a litigation and settlement is clear. He would rather cut through the chase
and solve his disputes swiftly and move on with his life.

AGAN v. PIATCO (GR> NO. 15501)-SC ordered all affected parties to comment made by one of
the parties that PIATCO commences arbitration proceedings by filing a request for arbitration
with the secretariat of the Internation chamber of commerce, International Court of
arbitration.

Private Justice-the concept is fairly recent development in the administration of justice.

-Private “Courts” are managed by private organizations, called ADR providers to serve
those who need to resolve most types of consumer, civil, corporate and commercial disputes.

-Parties generally agree to enter the private court system for one main reason: the
public court system is too chaotic and unwieldly.

-“vigilante justice”

-Judges, selected by the parties and are paid on an hourly or a per session basis, are for
rent not for sale. They are paid for their time and their expertise, not their expected favors.

CON: Creates a dual court system-one rich and one poor. No means a perfect system, it
offers enormous savings in time, effort, anxiety, money in the long haul.

CHAPTER 2

The litigation of conflict: A Confucian Confusion

Two fundamental reasons for failure of trial courts according to Ralph Warner and Stephen
Elias:

1) Court Rules and Procedures are so complicated and inefficient that lawyer fees and
other costs end up being a bigger problem than the dispute itself.
 2) Winner take-all sustem defies logic, encourages lying and generally brings out the worst
in all participants.

The Nature of Conflict

Conflict- clash of divergence of opinions, values and interests and emotions.

Several phases of the conflict process by Peter Condiffe (1995)

1) Conflict starts when parties perceive their differences-they go though feelings of anziety
and frustration.

2) Realization or expression of grievances and the assessment of all angles in the conflict.

-some parties get afflicted with AVOIDANCE SYNDROME (disregarding the existence of
the problem because of relative powerlessness high risks and costs involved)

3) Parties choose their conflict resolution methods and select their strategies to settle
their disagreements.

4) Evaluation of outcomes and the analysis of all ramifications of full implementation of

the chosen methods of conflict management.

ADR aims to solve the conflict not win the lawsuit which is the aim of litigation.

Conflict is a contest and a problem to solve (Bill Withers)

Modes of Resolving Conflict (Blake and Moulton)

1) Withdrawal-Avoidance behavior on one or both parties

2) Smoothing-emphasis of common interest and yielding by one or both parties.

3) Compromising-each side obtains a part of what it wants.

4) Forcing-forcing the other to acquiesce.

5) Problem solving-involves an agreement in which both sides meet their objective and
affective needs.

When a person wins through a lawsuit can compare it as a Pyrrhic victory (pronounced /ˈpɪrɪk/)
which is a victory with devastating cost to the victor; it carries the implication that another such
will ultimately cause defeat.

Importance of Litigation (Peter Lovenheim)

1) When you need to establish a legal precedent, such as the validity of the patent which
your company holds;
2) When you need to publicy prove the truth, such as when a customer’s complaint about
the product quality or safety has received wide attention in the media product’s good
name;

3) When your company’s legal rights have been infringed and you stand a good chance of
collecting substantial damages in court;

4) When your opponent is unable and unwilling to participate in ADR; and

5) When serious crimes are involved in the dispute.