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What is Alternative Dispute Resolution (ADR)? ADR is a term used to describe several different methods of resolving legal disputes without going to court. The rising cost of litigation is making traditional lawsuits impractical for many individuals and businesses. At the same time, civil courts face backlogged dockets, resulting in delays of a year or more for private parties to have their cases heard by a jury. New types of proceedings have been developed in response, and they are proving beneficial, saving time and money for everyone involved. These include arbitration, mediation, and additional kinds of ADR designed for specific cases and subject matters. Binding and Non-binding Arbitration Arbitration is much like a trial, in that the parties can call witnesses, present evidence, and argue the merits of their case to a neutral decision maker. In many jurisdictions, civil litigants whose claims do not exceed a certain dollar amount may be ordered to attend arbitration by the court, in an effort to keep the court’s docket clear for more substantial lawsuits. Local court rules may also allow litigants to elect for their case to be sent to arbitration regardless of the dollar amount at stake. In doing so, the parties can agree that the results of the arbitration will be binding or nonbinding. In non-binding arbitration, the loser can afterwards request a new trial in the civil court.
collaborative approach to divorce aims to remove the “win-lose” mentality so common in these cases. Both spouses are still represented by their own attorneys, but family counselors, financial professionals, and others are brought into the negotiations as well. In a series of group sessions, the parties discuss and reach agreement on issues such as property division, alimony, and child custody and visitation. ADR can also take the form of an evaluation and mediation-type proceeding overseen by a legal professional with specialized training in the subject of the dispute. For example, parties in a construction defect lawsuit may agree to present their evidence to a neutral individual who is both an attorney and an architect. This person will know more about proper construction techniques than a judge or jury, and may be able to help the parties resolve their differences at a far lower cost than traditional litigation. Attorney Representation in ADR Cases If you are looking to cut short the litigation process, ADR may be the answer. But regardless of the type of ADR proceeding you are contemplating, you need independent legal advice to protect your interests. Contact an attorney to learn more about the benefits of resolving your case out of the courtroom. What is ADR?
The court will appoint a well-established attorney in the local area to perform the duties of arbitrator. This person will act as a judge at the arbitration hearing, listening to the evidence and rendering a decision. Parties may be given some amount of say in the arbitrator selection process. At a minimum, they will be allowed to strike potential arbitrators with whom they have had prior dealings. Once a case is sent to arbitration, a conference will be held either by telephone, or in person at the arbitrator’s office. Much like a pre-trial conference in civil court, this is the opportunity for the parties to give the arbitrator an overview of what the case is about, and to discuss any evidentiary issues in advance of the arbitration hearing. On the day of the hearing, the parties will meet in a conference room at the arbitrator’s office or in an empty room at the courthouse. Each side will present its case over the course of several hours. Afterward, the arbitrator can render a decision immediately, or take the matter under advisement and issue a written decision in the following weeks. Using Mediation to Reach a Settlement Mediation is a much different type of ADR proceeding. Unlike arbitration, it does not involve an adversarial hearing, and there is no decision-making official present. Instead, the parties involved in the dispute are brought together in one location, and a neutral facilitator acts as a go-between. The job of the mediator is to help the parties reach a voluntary settlement of the case. For litigants and attorneys who have become antagonistic toward each other over the course of the litigation, or who have unrealistic expectations concerning the outcome of the case, mediation may be their only chance to avoid having to go to trial. A typical mediation begins with everyone meeting in the same room, and each party giving a short presentation to the mediator. The purpose of the presentation is to give an overview of the facts and impress upon the mediator the relative strength of that party’s case. The parties then split up into two rooms. The mediator goes back and forth between the rooms, personally relaying the parties’ settlement offers and responses. Parties can share information with the mediator in confidence, and the mediator will give the parties his or her own thoughts about the case. In the end, the goal is for the parties to agree on how the case should be resolved. Collaborative Divorce and Specialist Evaluations Divorce cases have the potential to turn into bitterly contested ordeals. A
Alternative Dispute Resolution (ADR) is a general term encompassing various techniques for resolving conflict outside of court using a neutral third party. When strategically applied in the context of enforcement negotiations, ADR has proven to be a useful tool in overcoming impasse, improving the efficiency of difficult negotiations, and achieving durable settlements. Outside of the enforcement context, ADR has been effectively used to enhance public involvement in environmental decisions, to facilitate technical inquiries and information exchanges, and to identify creative solutions to daunting problems What types of ADR might be used in environmental matters? Mediation In mediation, a neutral mediator with no decision-making authority helps parties clarify issues, explore settlement options, and evaluate how best to advance their respective interests. Mediation is the ADR technique most commonly used in regulatory and Superfund enforcement cases and, in this context, is generally a confidential process. Facilitation Facilitation involves the use of a neutral to help a group of people conduct productive discussions about complex, sensitive, or potentially controversial issues. The focus of the facilitator’s role is to help people communicate effectively with each other. Facilitation may be a significant component of a mediation process, especially where a large number of parties are involved. Facilitation is also often used, in the absence of an active dispute, when people come together for some type of exchange, such as to share information, to air divergent views, to generate options, to establish priorities, or to offer input into a decision. Facilitation can be useful in otherwise unassisted enforcement negotiations to help reduce confusion and conduct productive and clarifying discussions. Depending upon the context, facilitative processes may or may not be confidential. Convening Convening is the use of a neutral to help parties determine whether and how to pursue negotiation; the convener may help the parties identify issues, identify necessary participants, determine whether some type of neutral assistance would be useful, and if so, select a mutually
acceptable neutral or team of neutrals. Individual conversations with a neutral convener are generally confidential. Arbitration At the other end of the spectrum from mediation is arbitration, in which the neutral evaluates the merits of the case and issues a decision which may be either binding or non-binding (advisory). The arbitrator functions essentially as a judge. Spectrum of Dispute Resolution Methods Unassisted Negotiation
Assisted Negotiation Process Assistance
Negotiation: Parti es and their attorneys attempt to resolve a dispute through direct discussions with one another.
Convening: Th e use of a neutral to help parties determine whether and how to pursue negotiations.
Early Neutral Evaluation: Th e use of a neutral evaluator to give opinions on each party’s case and the likely court Facilitation: T outcome. he uses of a neutral to help a Fact group of people Finding: The conduct use of a neutral productive to investigate, discussions analyze, and about complex report to parties or potentially regarding controversial factual issues. questions. Mediation: A voluntary process involving the use of a neutral to help parties reach agreement by clarifying issues, exploring settlement options, and evaluating how best to advance their respective interests.
Court: Parties litigate their case in court, presenting evidence and arguments to a judge and, as appropriate, a jury. The court issues a binding decision subject to any rights of appeal.
Administrative Court: Parties try their case before an agency administrative law judge for a binding Non-binding Arbitration: T decision subject he use of a to any rights of neutral to appeal. review evidence, hear Binding arguments, and Arbitration: T issue a non- he use of a binding neutral to decision. review evidence, hear Summary Jury arguments, and Trial: Parties issue a binding present their decision. case to a jury for a nonbinding decision.
ALTERNATIVE DISPUTE RESOLUTION (ADR) (also known as external dispute resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal
profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; this means that attendance is compulsory, not that settlement must be reached through mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) ADR can be used alongside existing legal systems such as sharia courts within common law jurisdictions such as the UK. ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region's difference should be delegated to sub-pages. Alternative Dispute Resolution is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation. ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and advisory or nonbinding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court appointed mediator or mediation panel. Structured transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession. The major differences between formal and informal processes are (a) pendency to a court procedure and (b) the possession or lack of a formal structure for the application of the procedure. For example, freeform negotiation is merely the use of the tools without any process. Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and controlled setting. Calling upon an organizational ombudsman's office is never, by itself, a formal procedure. (Calling upon an organizational ombudsman is always voluntary; by the International Ombudsman Association Standards of Practice, no one can be compelled to use an ombuds office.) Organizational ombuds offices refer people to all conflict management options in the organization: formal and informal, rights-based and interestbased. But, in addition, in part because they have no decision-making authority, ombuds offices can, themselves, offer a wide spectrum of informal options. This spectrum is often overlooked in contemporary discussions of “ADR.” “ADR” often refers to external conflict management options that are important, but used only occasionally. An organizational ombuds office typically offers many internal options that are used in hundreds of cases a year. These options include: delivering respect, for example, affirming the feelings of a visitor, while staying explicitly neutral on the facts of a case, active listening, serving as a sounding board,
providing and explaining information, one-on-one, for example, about policies and rules, and about the context of a concern, receiving vital information, one-on-one, for example, from those reporting unacceptable or illegal behavior, reframing issues, helping to develop and evaluate new options for the issues at hand, offering the option of referrals to other resources, to “key people” in the relevant department, and to managers and compliance offices, helping people help themselves to use a direct approach, for example, helping people collect and analyze their own information, helping people to draft a letter about their issues, coaching and roleplaying, offering shuttle diplomacy, for example, helping employees and managers to think through proposals that may resolve a dispute, facilitating discussions, offering mediation inside the organization, “looking into” a problem informally, facilitating a generic approach to an individual problem, for example instigating or offering training on a given issue, finding ways to promulgate an existing policy, identifying and communicating throughout the organization about “new issues,” identifying and communicating about patterns of issues, working for systems change, for example, suggesting new policies, or procedures, Following up with a visitor, following up on a system change recommendation. (See Rowe, Mary, Informality — The Fourth Standard of Practice, in JIOA, vol 5, no 1, (2012) pp 8–17.)
Informal referral to a co-worker known to help people work out issues is an informal procedure. Co-worker interventions are usually informal. Conceptualizing ADR in this way makes it easy to avoid confusing tools and methods (does negotiation once a lawsuit is filed cease to be ADR? If it is a tool, then the question is the wrong question) (is mediation ADR unless a court orders it? If you look at court orders and similar things as formalism, then the answer is clear: court annexed mediation is merely a formal ADR process). Dividing lines in ADR processes are often provider driven rather than consumer driven. Educated consumers will often choose to use many different options depending on the needs and circumstances that they face. Finally, it is important to realize that conflict resolution is one major goal of all the ADR processes. If a process leads to resolution, it is a dispute resolution process. The salient features of each type are as follows: 1. In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB – a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves" – see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.) 2.
In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed
experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes. 4.
In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.
Beyond the basic types of alternative dispute resolutions there are other different forms of ADR: Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator. Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement. Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members. Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes. Ombuds: third party selected by an institution – for example a university, hospital, corporation or government agency – to deal with complaints by employees, clients or constituents. An organizational ombudsman works within the institution to look into complaints independently and impartially. "Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence. In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster "appropriate" dispute resolution. That is, some cases and some complaints in fact ought to go to formal grievance or to court or to the police or to a compliance officer or to a government IG. Other conflicts could be settled by the parties if they had enough support and coaching, and yet other cases need mediation or arbitration. Thus "alternative" dispute resolution usually means a method that is not the courts. "Appropriate" dispute resolution considers all the possible responsible options for conflict resolution that are relevant for a given issue. ADR can increasingly be conducted online, which is known as online dispute resolution (ODR, which is mostly a buzzword and an attempt to create a distinctive product). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.
BENEFITS ADR has been increasingly used internationally, both alongside and integrated formally into legal systems, in order to capitalize on the typical advantages of ADR over litigation: Suitability for multi-party disputes Flexibility of procedure - the process is determined and controlled by the parties to the dispute Lower costs Less complexity ("less is more") Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate Likelihood and speed of settlements Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them) Durability of agreements Confidentiality The preservation of relationships and the preservation of reputations Arbitration The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defense in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement. Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitutes the Arbitration Tribunal. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court. Conciliation Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation. Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator. When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both. Note that in USA, this
process is similar to Mediation. However, in India, Mediation is different from Conciliation and is a completely informal type of ADR mechanism. ALTERNATIVE DISPUTE RESOLUTION In the late 1980s and early 1990s, many people became increasingly conce rned that the traditional method of resolving legaldisputes in the United St ates, through conventional litigation, had become too expensive, too slow, and too cumbersome formany civil lawsuits (cases between private parties ). This concern led to the growing use of ways other than litigation toresol ve disputes. These other methods arecommonly known collectively as alte rnative dispute resolution. As of the early 2000s, ADR techniques were being used more a nd more, as parties and lawyers and courts realized thatthese techniques co uld often help them resolve legal disputes quickly and cheaply and more p rivately than could conventionallitigation. Moreover, many people preferr ed ADR approaches because they saw these methods as being more creati ve andmore focused on problem solving than litigation, which has always been based on an adversarial model.The term alternativedispute resolution is to some degree a misnomer. In reality, fewer than 5 percent of all lawsu its filed go to trial; the other 95percent are settled or otherwise concluded before trial. Thus, it is more accurate to think of litigation as the alternativ e andADR as the norm. Despite this fact, the term alternative dispute resol ution has become such a wellaccepted shorthand forthe vast array of nonlit igation processes that its continued use seems assured. Although certain ADR techniques are well established and frequ ently usedfor example, mediation and arbitrationalternative dispute resolution has no fixed definition. The term alternative dispute resolution includes a wide ra nge ofprocesses, many with little in common except that each is an alterna tive to fullblown litigation. Litigants, lawyers, and judgesare constantly ad apting existing ADR processes or devising new ones to meet the unique ne eds of their legal disputes. Thedefinition of alternative dispute resolution i s constantly expanding to include new techniques.ADR techniques have n ot been created to undercut the traditional U.S. court system. Certainly, A DR options can be used incases where litigation is not the most appropriat e route. However, they can also be used in conjunction with litigation whe nthe parties want to explore other options but also want to remain free to r eturn to the traditional court process at any point.Of the many ways to reso lve a legaldispute other than formal litigation, mediation, arbitration, medi ationarbitration, Minitrial,early neutral evaluation, and summary jury trial are the most common. Mediation—also known as conciliation— Is the fastest growing ADR method. Unlike litigation, mediation provides a forum inwhich parties can resolve their own disputes, with the help of a neutral third party. Mediation depends upon the commitment of the disputants to solve their o wn problems. The mediator, also known as afacilitator, never imposes a de cision upon the parties. Rather, the mediator's job is to keep the parties tal king and to helpmove them through the more difficult points of contention . To do this, the mediator typically takes the parties through fivestages. First, the mediator gets the parties to agree on procedural matters, such as by stating that they are participating in themediation voluntarily, setting th e time and place for future sessions, and executing a formal confidentiality agreement. Onevaluable aspect of this stage is that the parties, who often have been unable to agree on anything, begin a pattern of sayingyes. Second, the parties exchange initial positions, not by way of lect uring the mediator but in a face-to face exchange with eachother. Often, this is the first time each party hears the other's complete and uninterrupted version. The parties may begin tose e that the story has two sides and that it may not be so unreasonable to co mpromise their initial positions. Third, if the parties have agreed to what is called a caucusing pr ocedure, the mediator meets with each side separately in aseries of confide ntial, private meetings and begins exploring settlement alternatives, perha
ps by engaging the parties in some"reality testing" of their initial proposals . This process, sometimes called shuttle diplomacy, often uncovers areas o f flexibilitythat the parties could not see or would have been uncomfortabl e putting forward officially. Fourth, when the gap between the parties begins to close, the me diator may carry offers and counteroffers back and forthbetween them, or t he parties may elect to return to a joint session to exchange their offers. Finally, when the parties agree upon the broad terms of a settle ment, they formally reaffirm their understanding of thatsettlement, comple te the final details, and sign a settlement agreement. Mediation permits the parties to design and retain control of the process at all times and, ideally, eventually strike their ownbargain. Evide nce suggests that parties are more willing to comply with their own agree ments, achieved through mediation,than with adjudicated decisions, impos ed upon them by an outside party such as a judge.An additional advantage is that when the parties reach agreement in mediation, the dispute is over,t hey face no appeals,delays, continuing expenses, or unknown risks. The p arties can begin to move forward again. Unlike litigation, which focuseson the past, mediation looks to the future. Thus, a mediated agreement is part icularly valuable to parties who have anongoing relationship, such as a co mmercial or employment relationship. Arbitration more closely resembles traditional litigation in that a neutral third party hears the disputants' arguments andimposes a final an d binding decision that is enforceable by the courts. The difference is that i n arbitration, the disputantsgenerally agreed to the procedure before the di spute arose; the disputants mutually decide who will hear their case; and t heproceedings are typically less formal than in a court of law. One extrem ely important difference is that, unlike courtdecisions, arbitration offers al most no effective appeal process. Thus, when an arbitration decision is iss ued, the case is ended.
Liability, massive construction, and antitrust cases. In a minitrial, each partypresents its case as in a regular trial, but with the notable di fference that the case is "tried" by the parties themselves, andthe presentati ons are dramatically abbreviated. In a minitrial, lawyers and experts present a condensed version of the case to top management of both parties. Often, aneutral adviser— sometimes an expert in the subject area— sits with management and conducts the hearing. After thesepresentations, t op management representatives— by now more aware of the strengths and weaknesses of each side— try tonegotiate a resolution of the problem. If they are unable to do so, the y often ask for the neutral adviser's best guess as to theprobable outcome o f the case. They then resume negotiations. The key to the success of this approach is the presence of both sides' top o fficials and the exchange of information thattakes place during the minitria l. Too often, prelitigation work has insulated top management from the tru e strengths andweaknesses of their cases. Minitrial presentations allow them to see the dispute as it would appear to an o utsider and setthe stage for a cooperative settlement. EARLY-NEUTRAL EVALUATION An early neutral evaluation (ENE) is used when one or both part ies to a dispute seek the advice of an experienced individual,usually an att orney, concerning the strength of their cases. An objective evaluation by a knowledgeable outsider cansometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases' stren gthsand weaknesses. Of course, the success of this technique depends upo n the parties' faith in the fairness and objectivity ofthe neutral thirdparty, and their willingness to compromise. SUMMARY JURY TRIAL
Final and binding arbitration has long been used in labor management disputes. For decades, unions and employers havefound it m utually advantageous to have a knowledgeable arbitrator— whom they have chosen— resolve their disputes in thischeaper and faster fashion. One primary advan tage for both sides has been that taking disputes to arbitration has keptever yone working by providing an alternative to strikes and lockouts and has k ept everyone out of the courts. Given this verysuccessful track record, the commercial world has become enthusiastic about arbitration for other type s of disputes as well. Now a new form of arbitration, known as courtannexed arbitration, has emerged. Many variations of courtannexed arbitration have developed throughout the United States. One can be found in Minn esota, where, in the mid1990s, the Hennepin CountyDistrict Court adopted a program making civil cases involving less than $50,000 subject to mand atory nonbinding arbitration.The results of that experimental program wer e so encouraging that legislation was later enacted expanding the arbitratio nprogram statewide. As of 2003, most cases were channeled through an A DR process before they could be heard in thecourts. A growing number of other federal and state courts were adopting this or similar approaches. MEDIATION-ARBITRATION As its name suggests, mediation-arbitration, or med arb, combines mediation and arbitration. First, a mediator tries to bring the partiescloser together and helps them reach their own agreement. If the parties cannot compromise, they precede to arbitration before that same third party or before a different arbitrator for a final and binding decision. MINI-TRIAL The minitrial, a development in ADR, is finding its greatest use in resolvin g largescale disputes involving complex questionsof mixed law and fact, s uch as Product
Summary jury trials have been used primarily in the federal courts, where they provide parties with the opportunity t o "try"their cases in an abbreviated fashion before a group of jurors, who t hen deliberate and render an Advisory Opinion. Like an early neutral evaluation, an advisory opinion from a su mmary jury trial can help the parties assess the strengths andweaknesses o f their cases and sometimes can facilitate the settlement of the dispute. An other advantage of the summaryjury trial, which it has in common with th e minitrial, is that it can be scheduled much sooner than a trial. When earl yevaluations help the parties settle their cases, the parties typically avoid much of the delay, expense, and anxiety thatoccurs in litigation. The Law on Alternative Dispute Resolution: Private Justice in the Philippines 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, although 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 longwinded examinations of witnesses; and 5) The lawyer’s 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 International 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 unwieldy. -“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 system 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 anxiety 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 publicly 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. CHAPTER 3 The Grand Misnomer: “Alternative” Dispute Resolution” Legal Basis of ADR: ART. VIII, Sec. 5 (5) 1987 Constitution -Mandating the SC to promulgate rules that shall “provide a simplified and inexpensive procedure for the speedy disposition of cases. Rule 18, Sec 2(a) 1997 Rules of Civil Procedure -Requiring the courts to “consider the possibility of an amicable settle or of a submission to alternative modes of resolution.” “Alternative” comes from the word “alternate” which means substitute, spare tire, a second stringer, a fallback position. Which is wrong because litigation should be the LAST option not ADR. Limitations of ADR Cases that involve: 1) Constitutional law issues 2) Anti-trust suits 3) Probate 4) Adoption 5) Precedent-setting cases that involve punitive damages 6) Actions of equitable relief, and 7) Nuisance are beyond the scope of arbitration. ART. 2035 of the Civil Code If related issues of the following are matters in controversy may not be capable of being referred to arbitration: 1) Civil Status of persons; 2) Validity of Marriage; 3) And legal separation; 4) Futures support; 5) Future legitime; 6) Jurisdiction of the courts; 7) Future jurisdiction of the courts. CHAPTER IV
The Settlement of dispute in the Philippines: A culture of PAKIKISAMA Many Filipinos readily overcome conflict through pragmatic means. Gini Graham’s techniques in Resolving Conflict: 1) Identify the source of the problem 2) Applying the appropriate problem solving techniques: a. Creative visualization-examine the reasons for the problem b. Brain-storming-come up with alternatives c. Automatic writing-ask inner self for reactions of those possibilities d. Mental Imaging-ask inner expert for advice in making choices. Litigation is what many Filipino Lawyers do best. Students of law are trained to think like lawyers, but they are not prepared to deal with they should do best: solve their client problems and resolve their disputes with the least amount of time and expense. The key to decongest the courts is that students should be trained to be sensitive to their client’s wishes to settle their conflict or dispute swiftly and without expense to court trials. Filipino Conflict Management System Filipino Values 1) Pakikiusap-request and 2) Pakikisama-Companionship Keep communication lines open. 1) Amor Proprio (self-respect) 2) Pasikaban (one-upmanship) 3) Bahala na (fatalism) 4) Gantihan (retaliation) Impede settlement and plays key roles in clogging the courts with frivolous suits that are brought just to “Save face” or to give a “lesson to the opposing party. But, positive aspects of Filipino culture that may tend to mitigate the Filipino propensity to litigate disputes: 1) Kamag-anak network (close family ties) 2) Tulungan (mutual aid) 3) Bigayan (give and take) 4) Palabra de Honor (Word of Honor) 5) Bayanihan (cooperative endeavor) 6) Hiya (shame of doing something wrong) 7) Utang na loob (recognition of a debt or obligation) 8) Paggalang (respect or honor) 9) Kompadre (godfather system) 10) Delikadesa (“Being proper”) The Katarungan Pambarangay was seen by legislators as a means to decongest the courts’ dockets, by encouraging the settlement of minor cases at the barangay level, which will in turn allow the courts to speed up the adjudication of already pending cases. This again relates to the accessto-justice problem in the country. To ensure that the goal is met, the Local Government Code makes KP mediation and conciliation a condition precedent to the filing of cases in court. 7 Though non-compliance does not result in jurisdictional defect thereby rendering the court proceedings void ab initio, such failure, if seasonably raised, makes the case vulnerable to a motion to dismiss on the ground of prematurity (Garces v. CA, 162 SCRA 504). (TAKEN FROM AN ONLINE PRIMER OF THE KATARUNGAN PAMBARANGAY Published by the UP-College of Law) Types of Arbitration in the Philippines: 1) Labor Arbitration The Labor Code of the Philippines makes arbitration mandatory in cases involving the interpretation and implementation of collective bargaining agreements (CBA) and the interpretation or enforcement of company personnel policies. The original and exclusive jurisdiction of which falls with the Voluntary Arbitrators. (Sanyo v. Canizares) 2) Construction Arbitration The creation of the Construction Industry Arbitration Commission (CIAC) ushered the birth of arbitration in the construction industry.(EO. 1008) Private or Government-entered construction contracts can be submitted.
Tesco v. Vera-While it is true that the CIAC shall have original and exclusive jurisdiction over disputes connected with contracts entered into by parties involved in the construction industry in the Philippines, the parties must first agree to do so before the CIAC can acquire jurisdiction to arbitrate the matter. 3) Consumer Arbitration Consumer Act of the Philippines (RA no. 7394) provides for the creation of a consumer arbitration program to handle consumer complaints. They have original and exclusive jurisdiction to mediate, conciliate hear and adjudicate all consumer complaints xxx. 4) Matrimonial Mediation Disputes between couples that are civil in nature may be the subject of court-referred mediation, subject to the limitations of Art. 2035 of the Civil Code. The ff. disputes may not be compromised: a) civil status of persons b) validity of marriage or legal separation c) any ground for legal separation d) future support e) future legitime f) jurisdiction of the courts. 5) Corporate Arbitration Corporation Code provides for the mechanism to resolve corporate disputes. The SEC can exercise its power to arbitrate the dispute upon written petition by any stockholder. (read more about powers of the SEC) 6) Partnership Arbitration The CC states that is beyond the authority of one or more but less than all the partners to enter into a compromise or submit to arbitration a partnership claim or liability. When it comes to ADR, unanimous consent of partners is needed to carry out the plant to resolve partnership disputes without a court trial. 7) Administrative Arbitration Doctrine of Non-exhaustion of administrative remedies 8) Environmental Mediation 9) Executive Arbitration 10) Foreign Arbitration 11) Banking Arbitration 12) Mining Arbitration 13) Maritime Arbitration 14) Insurance Arbitration 15) IP Arbitration 16) Securities Arbitration Six-Step Structure of a face-to-face mediation meeting (I-H-I-M-I-S) 1) Introduction and agreeing of ground rules 2) Hearing what has happened or summarizing the facts 3) Identifying the issues 4) Mutual understanding and communicating feelings 5) Ideal storming of a win/win solution 6) Signing of voluntary agreement. Causes of Court Delays (Justice Myrna Dimaranan Vidal) 1) the misuse of the due process and the abuse of legal technicalities; 2) the intervention of political pressure in court cases; 3) the sheer weight of court litigations arising from development and growth; 4) the dilatory tactics of lawyers; 5) neglect and laxity on the part of judges; and 6) Court vacancies. Definition of Terms: Alternative Dispute Resolution It is defined as 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, in which a neutral third party
participates to assist in the resolution of issues. It includes arbitration, mediation or conciliation, mini-trial, early neutral evaluation, or any combination thereof. Arbitration 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. It is the reference by mutual agreement or consent of the parties of a controversy or dispute to selected persons for an informal hearing and extra-judicial determination and resolution. The hearing is usually held in private and the decision of the persons selected will be a substitute for a court judgment. This avoids the formalities, delay and expenses of ordinary litigation. Mediation A dispute resolution procedure in which an impartial third party, mutually chosen by the parties, acts as the referee to help the contending parties settle their dispute. The mediator, unlike the arbitrator, has no authority to make the parties reach an agreement. He serves as a clarifier and facilitator without dictating settlement. The term mediation used under ADR Law includes conciliation. Mini-trial A dispute resolution method in which the merits of a case are argued before a panel created by agreement of the parties comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement. Early neutral evaluation An alternative dispute resolution process whereby 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 of the dispute. Combination of Alternative Dispute Resolution A particular alternative dispute resolution may be combined with the other types of alternative dispute resolutions. The most common is the mediation-arbitration (Med-Arb). In this kind of combination, parties first proceed to mediation to define the dispute and settle as many issues as possible, and then they engage in arbitration to settle issues that remain unresolved by the mediator. Class Action Administration Method of resolving the claims of a huge class of claimants with the least possible litigation expenditures and court cost through an administrative agency in charge of maintaining and tracking statistical days as well as overseeing restitution payments, appointed by the court or chosen by the parties design a set of claims procedures. Voluntary Settlement Conference Just like mediation it is a non binding hearing; the neutral party is allowed to express his opinions and views about the case and will be obligated to formulate an advisory opinion to be submitted to the parties for review and approval. Mass Tort ADR Projects (Manville Personal Injury Settlement Trust and A.H Robbins bankruptcy for claims of asbestos sufferers and for claims related to the Dalkon shield, respectively) Referee or “Rent a Judge” A practicing attorney or a retired judge usually acts as a referee who conducts a “trial” that incorporates the formalities of a regular court trial, complete with a court reporter and the observance of the strict rules of evidence. Mock-Jury trial. A “mock jury contract” sets forth all the provisions government the dispute resolution process chosen by them, including how the mock jury proceedings will be conducted. Ombudsman He is a fact finder or referee hired by businesses to deal with disputes inside the organization. The objective is to solve problems and disputes quickly and informally by hearing and investigating disputes between workers.
Process Consultation This is used if there is a long-standing relationship between the parties and they encounter problems in resolving the disputes. Process consultants act as counselors who focus on the process of negotiation, assisting the parties in enhancing or restoring communication lines. Court-Annexed Mediation Means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute Court-Referred Mediation Means mediation ordered by a court to be conducted in accordance with the Agreement of the Parties when as action is prematurely commenced in violation of such agreement. Chapter V The Mitigation of Litigation: A Cornucopia of Non-litigative Processes Motivating Factors that contribute to the rise in demand ADR processes: 1) Avoidance of high expense of litigation 2) Fear of lawsuit will result in an outcome far more adverse than reasonably anticipated 3) Need to return workers involved in the law suit to more productive activities 4) Wish to preserve and re-establish the business or inter-personal relationship that was temporarily disturbed by the conflict. Med/Arb (Already defined in this reviewer) The parties go through a phase where parties in crafting a compromise agreement only if this goes down in flames, the mediator will change colors-may not render a binding award as an arbitrator pursuant to the agreement. However, Sec. 20 of RA 876 states, “No Arbitrator shall act as a mediator in any proceedings in which he is acting as an arbitrator;xxx” is subject to strict interpretation. Facilitation is a less active form of mediation. The neutral third party or facilitator acts as a moderator in large meetings, acting as traffic police officer directing the flow of traffic in the meeting and seeing to it that everyone says his piece during the forum. Mini-trials are not a trial but a rational and voluntary manner in structuring a settlement of disputes between two big companies that are at loggerheads over sticky business issues. This is otherwise known as “renta-judge”. Besides, mini-trial is a voluntary, confidential and non-binding procedure that affects a speedy, cost-effective resolution of corporate conflict. Lawyers present summaries of their cases to chief executives or other key decision-makers representing both clients. (Linda Singer) Mini-trial contract This is signed by the parties that contain provisions governing the conduct of discovery, how hearing will be handled and a few more important stipulations. Class action administration is a sensible approach at dispute resolution is to have an administrative agency that is in charge of maintaining and tracking statistical data as well as overseeing restitution payments, appointed by the court or chosen by the parties design a set of claims procedures and forms that will be sent out to all the claimants. Voluntary settlement conference is where the neutral party, unlike mediation, is allowed to express his opinions and views about the case and will be obligated to formulate an advisory opinion to be submitted to the parties for review and approval.
Conciliation uses a neutral third party to clarify issues in dispute so that the parties concerned may themselves arrive at a mutually acceptable agreement. Mass tort ADR projects Rent-A-Judge incorporates the formalities of a regular court trial, complete with a court reporter and the observance of the strict rule of evidence but the parties may agree to modify or disregard most formal rules of procedure, evidence and pleading with some limitations. Mock Jury Trial Ombudsman Process consultation the process consultants (PC) differs from the mediator in that there is no discussion of the specific issues or any attempt to solve them. Thus, process consultants are often more like counselors who help parties to get along better so that they can engage in better negotiation and problem-solving. ADR processes in US Government Agencies International Commercial Arbitration Small claims courts Neighborhood dispute centers Regulatory negotiation Chapter VI The sport of Non-adversarial lawyers Leigh Steinberg, “Effective negotiation is about exhaustive preparation, utter clarity, heartfelt communication, and a sincere, demonstrated desire to fully understand not just your own needs but the needs of other party.xxx” Jesus and Socrates were two of the best negotiators of history. One is a form of syllogism, the other in the form of parables. Rock and a Hard Place- The rock is litigation, which as a means of resolving a dispute is frustrating, time consuming, expensive and full of friction. The hard place is negotiation, which can often prove unavailing as a means of reaching accord between two disputants; each of whom has strong feelings about the matter. (Freund, Smart Negotiating, 1992) LITI-GATION (Marc Deiner) Litigation is often used for leveraging. A lawsuit is filed and pushed to the limit to force a favorable settlement agreement. Negotiation is a problem solving operation. (Romance Languages means “to do business”) Lawyers have a role to play in at least two crucial negotiation schemes: 1) Dispute or litigation settlement 2) Transaction-planning to preventive law negotiations Basic Negotiation Tactics 1) The wince Well-timed flinch at the exact moment when the other party announces his terms. 2) Silence Staying absolutely quiet after making your offer or when the other party says something that you find disagreeable 3) Good guy/bad-guy Working with an actual partner to make it appear to the other party that accepting the offer of the “good guy” is a much better alternative than giving in the harsher terms “bad guy” 4) Limited authority Buying time to obtain more authority from an imaginary principal or a real person with greater discretion 5) Red Herring Creating distraction to muddle the real issues 6) Trial Balloon Raising questions designed to peek into the other party’s position without revealing your true objectives
7) Low-balling Agreeing to the offer made by the other part and then start chipping away at the terms of the original offer until the offer has been severely altered 8) The Bait and switch 9) Advertising one product to bring people inside the store and finding excuses to explain the unavailability of the advertised product then quickly suggest that a different product be bought instead. 10) Outrageous behavior Exhibiting socially unacceptable demeanor to rattle the other party 11) Written work Presenting adhesion contracts to discourage question about the deal 12) The vise Applying verbal pressure to force the other party “To do better” than what is being offered and to gain concessions. 13) Trade off Splitting the difference and seeking the midpoint 14) Nibble Waiting for the major terms of the deal to be settled then asking for the “minor” concessions to be included in the deal 15) Funny Money Making mathematical calculations and dividing the payments over a period of time to convey the impression that the other party is getting a “good deal”. Two major types of unassisted negotiations: 1) Combative Negotiator- who will emphasize only his own gains at the expense of the other and employ hard line tactics, such as exaggerating claims or even threatening to abandon the discussion if he does not get his way. 2) Conciliatory negotiator-who will assume the role of a “problem solver” rather than an intimidator. Class of negotiations 1) Position-based negotiations often involve hard-ball methods because it is premised on the presumed superiority of one’s position. 2) Interest-based negotiation is much more candid and amiable technique that involves the willing disclosure of all germane information to the other party so as to explore all avenues of satisfying the needs and interests of the other side of the least possible cost and at the shortest possible time. Leonard Koren and Peter Goodman’s dead-lock breaking techniques (1991) 1) Be positive and don’t be put off by the good word “no” 2) Agree on easier terms first and skip over the points that are bogging you down and come back to them late 3) Emphasize shared goals, get back to common ground and start building up again 4) Reduce complexity, break down complicated negotiations into pieces and solve each piece one at a time 5) Brainstorm with your opponent to generate various alternatives 6) Fine tune your agreement so that there is something that both of you can find acceptable 7) Passing written proposals back and forth for comment 8) Calling a time out when things get rough and not going your way. EXHAUST ADR PROCESSES BEFORE LITIGATION.