ADR in the Philippine Courts

Geraldine Faith A. Econg

 Different ADR Methods
Early Neutral Evaluation
• Non-binding assessment before pre-trial phase

Conciliation
• Conciliator clarifies issues and draws up the agreement

Mediation
• Voluntary process where a mediator facilitates the process

Arbitration
• Arbitrators resolve the dispute by rendering an award

Mini-trial
• Case is argued before senior decision makers who facilitates
negotiated settlement
 Kinds of Mediation

Court- Appellate
Annexed Court
Mediation Mediation
• Conducted • Corollary to
under the CAM and
auspices of the provides a
Court conciliatory
approach in
conflict
resolution
 Judicial Mobile Court- Court-
Dispute Annexed Annexed
Resolution Mediation Arbitration
• The Judge • Mediation • Arbitrators
employs proceedings appointed by
conciliation, conducted in the court
mediation or a mobile pursuant to
early neutral court arbitration
evaluation in deployed in agreement
order to an area
settle a case
at the pre-
trial stage
A·M. No. 11-1-6-SC-PHILJA
January 11, 2011
“CONSOLIDATED AND REVISED
GUIDELINES TO IMPLEMENT THE
EXPANDED COVERAGE OF
COURTANNEXED MEDIATION
(CAM) AND JUDICIAL DISPUTE
RESOLUTION (JDR)”
 Subject matters are:

Court- Judicial
Annexed Dispute
Mediation Resolution
 3 Stage Process of Mediation

CAM JDR ACM

• Judge refers • JDR judge • During the
case to PMC becomes the appeal, case
for mediator- is referred
mediation conciliator- to the PMC-
of dispute early neutral ACM unit
by an evaluator in an
accredited effort to
mediator secure
settlement
 Cases Cases
covered by Settlement of covered by
Summary Estate cases Katarungang
Procedure Pambarangay

Civil aspect Civil aspect Civil aspect of

of quasi of less grave estafa, theft &
offenses felonies libel
 Civil cases &
probate Forcible entry and
proceedings on unlawful detainer on
appeal from 1st level appeal
courts

Cases involving
title/possession of Habeas Corpus
real property on cases decided by 1st
appeal from 1st level level courts
courts
 Cases Not Covered by CAM/JDR

Other Cases
Can’t be Habeas With
compro-mised criminal Corpus
under RA
TRO/P. Inj
Cases 9262
When will CAM
start?

After the pleading stage or

arraignment, judge issues Order
requiring parties to appear before
the PMC
Contents of the Manner of
ORDER Appearance

Require parties to Personal Appearance

appear before PMC of Individual parties

Representatives with
Specify date of SPA to appear,
appearance negotiate & enter into
compromise
agreement
Warn parties of
sanctions which Ranking corporate
maybe imposed for officer to offer,
non-appearance negotiate, accept,
decide & enter into
compromise
 Selection of Mediator

If no
If special
agreement,
qualifications
Parties to PMC staff to
are required,
select a choose by
parties to
mutually lot the
choose from
acceptable mediator in
the entire list
mediator the presence
of accredited
of parties &
mediators
mediators
30 days to complete mediation
process reckoned from the date
when parties first appear for
initial conference
Period of mediation is excluded
from the periods for trial &
rendition of judgment
 • After parties fail to
When settle their disputes
does JDR during CAM
start?
 JDR • Handles proceedings from
filing of complaint until the
judge conduct of CAM/JDR

Trial • Presides over the pre-trial

proper to trial & judgment
Judges
Exception

Pending application for

TRO/Prelim Injunction, judge to
whom case is raffled rules on the
applications. The JDR is to be
handled by another branch
Briefs parties & Conducts JDR
counsels of process if case
CAM/JDR is not settled at
CAM

Issues Order of Resolves all

Referral to incidents/motio
CAM & pre- ns during 1st
setting of JDR stage
 Commer
Single
Family cial, IP &
Sala
Courts Envi
Courts
Courts
Even during trial stage, case maybe
referred to JDR upon written motion

Parties may request that their case

not be transferred to another court

Party who fails to appear during JDR

conference may be sanctioned
(censure, reprimand, contempt,
reimbursement
30 days for 1st 60 days for 2nd
Level Courts to Level Courts to
complete JDR complete JDR
 ENVIRONMENTAL
MEDIATION CASES
ENVIRONMENT
 Rules of Procedure for
Environmental Cases

A.M. No. 09-6-8-SC (April 29, 2010)

Multi-Sectoral Capacity Building on Environmental Laws

and the Rules of Procedure for Environmental Cases
 Mediation of Environmental
Disputes under Rule 3
• Notice of Pre-Trial (Sec. 1)
• Pre-Trial Brief (Sec. 2 in relation to Sec. 7)
 A statement of the parties’ willingness to enter into
an amicable settlement indicating the desired
terms thereof or to submit the case to any of the
alternative modes of dispute resolution
 Failure to comply w/ required content a ground for
contempt

Multi-Sectoral Capacity Building on Environmental Laws

and the Rules of Procedure for Environmental Cases
 Mediation of Environmental Disputes
under Rule 3 (cont’d)
• Referral to Mediation (Sec. 3)

 At start of pre-trial conference, court shall inquire if

parties have already settled the dispute;

 Otherwise, court shall refer the parties to the PMC

unit or, if not available, to the clerk of court or legal
researcher for purposes of mediation

Multi-Sectoral Capacity Building on Environmental Laws

and the Rules of Procedure for Environmental Cases
 Mediation of Environmental Disputes
under Rule 3 (cont’d)
• Mediation Period (Sec. 3)
 Mediation must be conducted within a non-
extendible period of 30 days from receipt of notice
of referral to mediation

• Mediation Report (Sec. 3)

 Within 10 days from expiration of the 30-day
period

Multi-Sectoral Capacity Building on Environmental Laws

and the Rules of Procedure for Environmental Cases
 Efforts to Settle Environmental
Disputes under Rule 3
If mediation fails: referral to branch clerk of
court prior to date of continuance of pre-trial for a
preliminary conference (to assist the parties in
reaching a settlement) (Sec. 4)

During pre-trial conferences: judges shall

exert best efforts to persuade the parties to arrive
at a settlement of the dispute (Sec. 5)

Multi-Sectoral Capacity Building on Environmental Laws

and the Rules of Procedure for Environmental Cases
 Efforts to Settle Environmental
Disputes under Rule 3 (cont’d)

In case of failure to settle/no full

settlement: judge shall encourage referral of
the case to a trial by commissioner under
Rule 32, Rules of Court or to a mediator or
arbitrator under any of the alternative modes
of dispute resolution governed by the Special
Rules of Court on ADR [Sec. 6 (k)]

Multi-Sectoral Capacity Building on Environmental Laws

and the Rules of Procedure for Environmental Cases
 Consent Decree
• Judicially-approved settlement between
concerned parties
 Based on public interest and public policy to protect
and preserve the environment [Rule 1, Sec. 4(b)]
 In accordance with law, morals, public order and
public policy to protect the right of the people to a
balanced & healthful ecology. (Rule 3, Sec. 5)

Multi-Sectoral Capacity Building on Environmental Laws

and the Rules of Procedure for Environmental Cases
Proceedings Under the
Special ADR Rules are
SPECIAL
PROCEEDINGS
 Proceedings Summary in Nature
1 day & for purposes of clarifying facts
Issue of existence, validity or enforceability of the Arbitration
Agreement

Referral to ADR

Interim Measures of Protection

Appointment of Arbitrator

Challenge to the Appointment of Arbitrator

Confidentiality/Protective Orders
Termination of Mandate of Arbitrator

Assistance in Taking Evidence

Confirmation, Correction or Vacation of Domestic

Arbitration

Recognition and Enforcement or Setting Aside of an

ICA Award

Recognition and Enforcement of a Foreign Arbitral

Award

Deposit and Enforcement of Mediated Settlement

Agreements
Procedure

Service (personal or courier) of

petition to be done by Petitioner
Proof of Service to be attached
to the Petition
Respondent may file response
within 15 days from receipt of
notice
Hearing be conducted not later
than 5 days from lapse of
period to file response
All pleading, motion,
A Certification
opposition,
Against Forum
comment, defense
Shopping shall be
or claim supported
appended to all
by verified
initiatory pleadings
statements
Prohibited submissions
a. Motion to dismiss;
b. Motion for bill of particulars;
c. Motion for new trial or for reopening of trial;
d. Petition for relief from judgment;
e. Motion for extension, except in cases where an
ex-parte temporary order of protection has been
issued;
f. Rejoinder to reply;
g. Motion to declare a party in default;
h. Any other pleading specifically disallowed
under any provision of the Special ADR Rules.
 • arbitral tribunal shall be accorded
the first opportunity or competence
to rule on the issue of whether or
not it has the competence or
jurisdiction to decide a dispute
Competence- submitted to it for decision
Competence
Principle
On the existence, validity and
enforceability of such
arbitration agreement before
start of arbitration: Judicial
relief is available only when the
place of arbitration is in the
Philippines and before the start of
the proceedings
 • Verified petition
How Filed?

• RTC where any of the

parties’ residence or place of
Where Filed? business

• Names, nature of the

What to dispute, grounds relied upon
and Relief sought
allege?
 • 15 days from receipt of service of
petition
When to file
Comment

• Allowed in this case

Interim
measure of
protection?

• prima facie determination

upholding the arbitration
Relief against agreement IS NOT subject to MR,
court action appeal, certiorari
 Judicial relief after
arbitration proceedings
commences on the matter
of the tribunal’s
jurisdiction.
 • Any of the parties to the
arbitration
Who Files?

• RTC where any of the

parties’ reside or has
Where Filed? business OR where
arbitration is

• arbitration agreement is
What to invalid, inexistent or
unenforceable
allege?
 • Request for arbitration
What to • Ruling of the Tribunal
attach?

• Within 15 days from receipt of

When to the petition
comment?

• 30 days from submission;

• With MR, no appeal
Court Action • No injunction against the
arbitration
 • Court action is moot and
Ruling of tribunal academic
before court
decides?

• As a nominal party
Implead the
Tribunal
 Referral to ADR
(pursuant to an Arbitration
Agreement or Submission Agreement)
1. Can be done by any party to
the case before PTC
2. After PTC, made by all
parties
Order referring to
Order denying
arbitration shall
referral has no
be immediately
appeal but subject
executory, no MR,
to MR and
appeal or
certiorari
certiorari
Interim Measures of
Protection
 Venue Grounds

Need to prevent
Place of residence or
irreparable loss or
principal business
injury

Need to provide
Where acts sought to security for the
be enjoined is done performance of any
obligation

Location of the real Need to produce or

property subject of preserve evidence or
arbitration compel act/omission
Measures Granted by the Court

Preliminary injunction directed

against a party to arbitration

Preliminary attachment

Appointment of a receiver

Detention, preservation,
delivery or inspection of
property
 Dispensing with
prior notice when If the Order is
the petitioner issued ex-parte,
alleges in the the validity is only
petition that there for 20 days
is an urgent need Respondent may
to either (a) file counter-bond
preserve property, to stay the
(b) prevent the effectivity of the
respondent from Order
disposing them
If respondent was If the Order is
given an issued ex-parte,
opportunity to be the validity is only
heard, Order is for 20 days
immediately Respondent may
executory, but file counter-bond
may be MR to stay the
and/or appeal or effectivity of the
certiorari Order
Appointment, Challenge
and Termination of
Mandate of the Arbitrator
 Court can be Appointing
Authority in the ff circumstances:
In an
institution
In ad hoc,
arbitration All cases when
where the IBP
where the Appointing
president fails
institution Authority fails
or refuses to
failed or to act
act
refused to
appoint,
 The court may, at
order appointing
its option, also
an arbitrator shall
require each party
be immediately
to submit a list of
executory, not be
not less than
the subject of MR,
three (3)
appeal or
proposed
certiorari; denial
arbitrators
may be MR, or
together with their
certiorari
curriculum vitae.
 Party can file a Order of the
petition to court resolving
challenge the the petition shall
Arbitrator only be immediately
when the executory and
appointing shall not be the
authority fails or subject of MR,
refuses to act on appeal or
the challenge certiorari
Some Mediation Techniques
• Explain the Mediation • Thank parties
mediation
process • Summary of
• Parties’ Agreements
• Benefits of
settlement Statement • Crafting/Signi
• Identification ng of
• Confidentiality Agreement
• Check on of Issues
Authority of • Interest vs.
Parties Position
• Alternatives
(BATNA/WAT
Opening NA)
Closing
Statement
 Preparation & Planning
Mood & Create a
Personality holding
Traits environment

Control the Pace the

Temperature Process
How to Raise the Heat
Draw attention to tough
questions and keep it focused
there

Give people more responsibility

than they are comfortable with

Bring issues to the surface

How to Lower the Heat
Address the technical aspects of
the problem
Structure the problem by
breaking it into parts, creating
time frames and clear roles
Call a caucus
Slow down the process
Set some ground rules!
Sample Rules for discussion
In addition to general rules, it is helpful to agree on
how you will talk with each other
• 1) One person speaks at a time.
• 2) Commitment to listen to one
another, to try to understand the
other person's point of view
before responding.
• 3) Discussion will be kept in
confidence, unless there is an
explicit agreement
• 4) Agree to talk directly with
each other
• 5) Agree to try to trust others are
doing the same
• 6) We agree to attack the issues,
not the people
• 7)Set time limits
• 8) Words to avoid
• 9) Agreement on what to do if
no agreement is reached
 Clarification &
Justification:
• Clarify issues raised by either parties

• Ask open-ended questions

• Summarizes issues of
great concern
 Developing Issues:

• Interests vs. positions

• Re-state parties’ interests

• Ask non-threatening questions

Focus on Interests not on Positions
Interests Positions

 Underlying needs,  Topics of

desires, hopes, fears disagreement

 Motivate people  Look in people

 What caused you to  Something you

take a position decided on
Interest: What do the parties really want?

Clarify Prioritize

Options: What are possible points of

agreement?
Consider skills Consider resources

Alternatives: What will each party do if no

agreement is reached?
BATNA WATNA
 Communication Tips
 Avoid “you” statements
 Focus on behavior, not person
 Focus on actions, not intent
 Be descriptive and specific (bring
data)
 Practice active listening skills
 Ask open and closed questions to
clarify points
Communication Tips
Use the vernacular
Listen attentively
Maintain eye contact
Use body language
Checks for understanding
Restatement
Allow for silence
Be aware of your nonverbal
signals:
• 7 % of the words used;

• 38% on voice quality; and

• 55% on nonverbal
communication
 Overcoming an Impasse

Deal with easier Consider the

Time out
issues first alternatives

Summarize
Break down the Change the
other parties’
issues dynamics
stand

Reflect positive
relation in the Ask why Re-frame
past
 Re-framing
Using different words, phrases,
terms, emphasis or intonation
intended to put what is said in a
new and positive light
 • Detoxify and lower emotional
Goal temperature

• Change verbal stinging & hostile

Method language to neutral terms

• “She is like to prostitute” to “Her

Example dress is inappropriate”
 • Re-orient perception by changing
Goal the meaning of offending behavior

• Give a positive interpretation to a

Method negative behavior

• “She fusses about insignificant

details” to “She finds other details
Example interesting”
 • Change the context by which the
Goal offending behavior is interpreted

• Find a context where the behavior

Method is appropriate

• “He is a miser” to “He sees the

value money esp. in this difficult
Example time.”
 • Focus on the interest instead of the claim
Goal

• Identify the real needs of the parties

Method

• “I suffered real losses and was publicly

humiliated” to “She believes that she has to
Example be compensated for what she experienced”
 • Shift from “people focus” to “problem focus”
Goal

• Move away from blaming or judging &

concentrate on needs
Method

• “He is a bad father. He smokes in the presence

of the children” to “We need to focus on the
correct behavior of parents in the presence of
Example the children”
 • Shift from individual to shared problem
Goal

• Mutualize the problem and focus on

commonalities
Method

• “It’s not my problem that you cannot sleep

because of my singing. Others have no
problem with that.” to “All of us have the same
Example goal of peaceful living”
 • Re-direct attention to a time-frame that is
favorable to a constructive dialogue
Goal

• Select a time frame that is associated with

positive experiences
Method

• “He is distracted by his other businesses”

to “Let’s go back to the time when both of
Example you focused on your business”
 • Transform the ultimatum into an
Goal aspiration

• Re-package a declared final offer

Method as one of the options

• “This is my final offer. Take it or

leave it” to “We now have an offer
Example to settle the case.”
Exercise
She is a total
embarrassment to the
neighborhood.
Dressing up in such
skimpy clothes. She
must be somebody’s
mistress.

In understand that
you are concern
about her manner of
dressing.
My wife belittles me on
a daily basis by
nagging about my
weight & eating habits.
She wants me to feel
unattractive.

Your wife must be

concern of your
health and well-
being particularly on
your weight & eating
habits.
My wife is such a
spendthrift wasting
money in unnecessary
things. Doesn’t she
understand that it is
recession now?

Because of
recession, you think
that your wife should
spend wisely.
I am not budging.
Look how much I
suffered. Php1 million
is my claim, Take it or
leave it.

I understand that
you want to be
compensated for
what you have gone
through .
This woman is the
problem. She is unfit
to be a mother. She
turns up late and
keeps the children
waiting.

We need to be
assured that the
children are taken
cared of at all times.
I lived here for many
years and I haven’t had
any complaints about
the noise brought
about by our playing
mahjong

We all want to live

peacefully and
comfortably in our
homes. How are we
going to achieve
this?
That’s it. For several
years, I’ve been trying
to put up with you—
living in a pigsty with
you! I’m leaving.

In the many years

that you have been
living together, can
you cite when you
were able to co-
exist?
Accept the
Php10,000.00. It’s my
best offer. Take it or
leave it

There is an offer on
the other side to
settle.