Alternative Dispute Resolution Reviewer Midterms

1 ADR Reviewer

Alternative Dispute Resolution Reviewer

Response of Judiciary to the Problems of

Midterms.

Delay.

APRIL 2, 2015YOURLADYLAWYER



ALTERNATIVE DISPUTE RESOLUTION By. Atty. Gabriel Robeniol

conference 

Chapter 1: Introduction Historical Rule:

Requirements of conducting pre-trial Utilization on different modes of discovery



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: 

30 August 1950



Contains provisions of/or on compromise arbitration.



Encourages litigants to agree upon fair

Mediation Commission or through Judicial Dispute Resolution (JDR) Legislative Action: 

Special domestic legislation passed the prescription of arbitration, mediation and

compromise and authorize arbitration

conciliation.

19 June 1953 

Enactment of arbitration law



G:



Republic Act. 876



Labor Code of the Philippines



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



Level Arbitration

Philippine law has acknowledged the international arbitration as system of setting commercial dispute.

Executive Branch Contribution: 

CIAC – Construction Industry Arbitration

UNCITRAL

Commission – Enacted during 4 Feb 1985



concerning constriction dispute

Model law which the Philippines committed its adherence.

Judiciary Action



23 August 1998 – rules of procedure governing construction arbitration

2 ADR Reviewer



19 November 2005 – CIAC revised rules of procedure governing construction arbitration



22 March 2010 – rules on ADR for

The Lawyer’s 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





An act to institutionalize use of an

Chapter 2: Fundamentals of Alternative

alternative dispute resolution system in the

Explain the benefits of the ADR system.

Dispute Resolution

Philippines and to establish the office for



alternative dispute resolution and for other

Alternative Dispute Resolution

purpose.



Expeditious and speedy manner



Methods of resolving dispute outside the

28 April 2004

court trial system Philippines as the Venue of ICA



Includes similar process in quasi – judicial agencies

·

RTC must refer to arbitration in

proper case ·

Foreign Arbitral awards must be

confirmed by RTC



Any process the used to resolve a dispute or controversy



Neutral third party

State Policy in ADR 

ADR act of 2004 declared the state policy

·

The RTC has jurisdiction to review



foreign arbitral awards

dispute 

·

Freedom of the party to choose or make their own arrangement to resolve dispute

Grounds for judicial review

different in Domestic and Foreign arbitral

Promote party autonomy resolution of



awards.

Provides solutions that is less time consuming, less confrontational procedure of goodwill and lasting friendship

·

RTC Decisions of assailed foreign



Wave of the future in international relationship

arbitral awards appealable: CA, certiorari

Principles of ADR 

Promotion of party autonomy and self – determination in dispute resolution

3 ADR Reviewer



person to convince them to come into an

Recognition of ADR as an efficient tool

agreement; non binding between eh parties.

and an alternative procedure for the resolution of cases 



an unantagonistic manner

Enlisting a private sector participation  Speedy and impartial justice



Declogging of court dockets.

Features of ADR  

Exceptions: intention is to cause delay or suspend the proceeding





ADR utilize means and methods allowed by law

Early – Neutral – availed of in pre – trial case



Mini – trial – merits of the case ar argued in front of a panel

ADR means used to resolve a dispute or controversy

Neutral – lawyers are brought to present the summary of the case

Objectives and Benefits of ADR 

Conciliation – conciliation of dispute in



Any combination of the foregoing



Any other ADR forms

Classification of Forms of ADR 

As to the number of parties:



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



Complex – two or more issues



As to the extent of conclusion



Complete – all issues involve is resolve



Partial – only two or three issues involve

neutral third party Sources of ADR 

Domestic Laws and Rules

Constitution Civil Code Arbitration Law 

Acts of the Executive Branch



Decisions of the Supreme Court



International Law : UNCITRAL



General principle of Law and Equity

Forms of ADR 

Arbitration – arrangement of the and abiding by the judgment or selected person in dispute; binding between the parties



Mediation – voluntary agreement between the parties with the help of third

are resolved but not all 

As to the role of evidence in the proceedings



Evidentiary



Non – merit based



As to the pendency of the court case



Case – related – when there is a case involved



Independent



AS to the applicable law



Domestic – when the place of business and arbitration is in the Philippines

4 ADR Reviewer





International – when the place of



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



outside the Philippines and the arbitration is outside the Philippines. 

Compromise or compromise agreement

As to the permanency of the ADR provider

Waiver or quitclaim – a statement renouncing any right or claim



ADR providers or practitioners



Preferences of ADR

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



ADR provider or practitioner

Subject matter of ADR 

Adversarial dispute and controversy



Exception:



Civil Status of persons



Validity of marriage and any other forms of legal separation



Jurisdiction of courts



Future legitime



Criminal Liability



In general which the law cannot be compromise

Chapter 3: Mediation under ADR Act of 2004 Mediation 

Voluntary process in which a mediator is selected by the disputing parties



Facilitates communication and negotiation



Assist the parties in reaching voluntary agreement

Court Annexed Mediated 

Mediation conducted under the auspices of the court

Court Referred Mediation 

Basic Concepts of ADR

Ordered by the court to be conducted by the agreement of the parties



Concluding Acts or Arguments

Mediator



Arbitral Award – final decision of



arbitration on awarding issue or controversy 

Mediated Settlement agreement – contract executed by the parties

Person conducting mediation

Mediation Practitioner 

Parties in mediation

Non – Party participants 

Witness, resource person, or expert

5 ADR Reviewer

Classification of Mediation

Closed and concluded





Execution of settlement agreement



Withdrawal of any party from mediation



Written declaration

Non – evidentiary or non – merit based mediated



Focuses on facilitation or communication and negotiation between the

Advantages of Mediation

parties in encouraging to voluntarily settle



Confidentiality in Mediation Process



Prompt, economical amicable dispute

dispute 

Institutional



Administered and conducted by or under

resolution 

the rules of mediation institution

The decision making authority rest upon the parties



Ad – Hoc

Confidential and Privileged nature of



Other than institutional

Mediation Communication

To be bound by the internal mediation and the administrative policies of such institution To have such rules govern the mediation of the dispute and for the mediator



All information of evidence is privileged and confidential in character

Confidential Information 

Any information relative to the subject of mediation or arbitration



Expressly intended not to be disclosed

Expressly Confidential Place of Mediation 

Two disputing parties are free to agree the place\

Impliedly confidential 

Creates reasonable expectations

Confidential Information Includes: 

Communication



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



Closure



In the absence – default is convenient to and appropriate to all the parties

inadmissible in adversarial proceedings 

People cannot be compelled to disclose information

Mediation shall be held in private Exceptions: Parties consented that there be



Parties to the dispute

other persons



Mediation



Counsel for the parties

6 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



Implied

act impartially 

Mediator may not be called to testify

Exceptions based on agreement, Nature of

The Mediator 

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



Lacks qualifications, training and

Made public or required by the courts to make it public



A threat or statement of plan to inflict bodily injury



Communication on attempt to commit a crime



Used to approve or disprove neglect, abandonment or exploitation



Used to sought or complaint against misconduct



OADR – list and freedom to select

Non party base agreement

experience 

Mediator’s impartiality is in question



Violation of ethical standards



Safety will be jeopardized



Unable to provide effective services



Conflict of interest



Other instances

Duties and Functions of Mediationr 

Prior to Mediation



Upgrade professional competencies



Reasonable inquiry



During the Mediation



Confidential

Limited use of External Evidence



Consent and self determination





Promotion of respect and control of

Exceptions based on Public Policy 

Court proceeding involving a crime or felony



Avoid liability on contracts arising from mediation Only such portion of the communication

abuse and process

necessary for the application of the exception can be admitted in evidence Privileged Mediation

Mediator’s Cost and Fees 

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

7 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



Assist

Arbitration agreement



Confer



Agreement by the parties

Chapter 4: Arbitration in General



In respect of legal relationship

Arbitration

Essential elements





Consent of the parties freely given

appointed in accordance with the agreement



Cause of consideration

of the parties



Lawful object



Process which one or more arbitrators

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 

Voluntary



Reference of a dispute to an impartial body



performance of his function

Arbitration Agreement 

parties to be charged 

Members are chosen by the parties themselves



Compulsary arbitration



Settlement of labor dispute by the

May be included in arbitration clause or compromise

Arbitration Clause 

Must be liberally construed consistent with the policy of encouraging alternative

government agency which has the authority to investigate

Shall be in writing and subscribed by the

dispute resolution method Doctrine of Separability



Domestic



International

the main contact even if it contained in



Foreign

Arbitration clause



Arbitration agreement is independent of

Same concept lang naman to nung nasa

Due process in Arbitral proceedings

chapter two na foreign domestic at international



equally apply to arbitral proceedings

dapat alam nyo nay un. 

Commercial Arbitration – matters arising

Principles of administrative due process

Judicial Review and Court intervention 

Proper RTC



Review Court of Appeals Rule 43 ROC

Policy on Arbitration



Certiorari proper court Rule 65 ROC



Interim Measures in Arbitration

from all relationship of commercial in nature

Speedy and inexpensive methods

8 ADR Reviewer



exercise of their privileged of party –

Allows the application of a party to a

autonomy and self – determination

judicial authority for interim conservatory 

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





Interpretation of the ADR act



due regard to the policy of law favouring

Instances of Occurrence of International Arbitration



Parties and Places of business is in different state



Place of arbitration provided in the agreement where parties have their business is outside the Philippines



Substantial part of obligation is to be performed outside the Philippines



Subject matter of agreement relates to more than one parties



Commercial Arbitration



Commercial relationship in nature



Contractual or not



Foreign Arbitration



International commercial arbitration is outside the Philippines

Coverage of IRR Provisions of ICA 

Applicable only to international

arbitration 

Interpretation of the model Law



need for uniformity of its interpretation



Interpretation of the IRR



Same policy



Party autonomy



Freedom of the parties



Reference to an agreement



Rules applicable to claims and counter claims

Rules of Receipt of Written Communication in ICA 

be located in different stage Rules communication is deemed received 

The rules of procedure for international commercial arbitration provided for under the ADR act or its IRR may also be applied for international commercial arbitration outside the Philippines if they are adopted as rules of procedure by the parties in the

Delivered to the address personally or at his place of business, habitual residence or

commercial arbitration 

The subject matter of the dispute may

mailing address 

If there is none, delivery by registered mail or attempt to deliver to last know place of business

Waiver of the Rights to Object in ICA

9 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 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 

IRR mandates that the parties shall be

IRR expands the application of the rules on waiver to include non – compliance with



Reasonable opportunity

Due Process 

the rules or requirements

Complied if parties are given opportunity to be heard and present evidence

Doctrine of Estoppel

Place if ICA





Default place – MANILA



Place chosen by Parties

Objectives to non compliance with the rules or any requirements under the arbitration agreement must be raised without undue delay or within the time prescribed therefore, failing which, the right to object is deemed waived

Estoppel in pais 

Happens when one, by his acts, representation, or admissions, or by his own silicon when he ought to speak out,

Commencement of ICA proceedings 

Date – requested by the parties



Default date – date of request for that dispute

Language in ICA 

Parties shall determine the language



Default – English

intentionally or culpable negligence, induces

Applicable Law in ICA

another to believe certain facts to exist and



Governing law generally is substantive law

such belief in a manner that he will be 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,



when confronted with a legal problem

In the case of mediation, proceedings, 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

10 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 right to act whether or the power to

the Integrated bar of the Philippines.

and authority to hear and determine cause

Arbitrators and Arbitral Tribunal in ICA 

Default number of arbitrators is three and is due to their appointment

Jurisdiction over subject matter 

Subject matter of the controversy is conferred by law

Default Procedure 

3 arbiter – each party shall appoint one

Two Instances



Sole arbiter – shall be appointed by the



Lack of jurisdiction



Excess of jurisdiction

parties 

The decision of the appointing authority on this matter shall be immediately executor

Jurisdictional review of Jurisdictional Issue 

and shall not be subject to a motion for reconsideration or appeal

Consider challenge as preliminary question



Defer resolution

Factors in Appointing Arbitrators 

Qualifications

Jurisdiction over the pArties



Considerations





Advisability of appointing an arbitrator of

Interim Measures in ICA

a nationality



Grounds for changeling an Arbitrator in ICA 

Impartiality



Possession of the qualifications

Default procedure



Sending of written agreement 15 days after becoming aware of the constitution of



The parties may request the appointing authority within 30 days to challenge tribunals

Relieve may be granted to prevent irreparable loss, security, preserve evidence, compel

Legal Representation in ICA 

A person may be represented by any person of his choice

arbitral tribunal 

Request shall be in writing transmitted by reasonable means

Procedure for the challenge in ICA 

Pre – causal agreement

Determination of Rules of Procedure 

Statement of claims



Statement of Defence

11 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 

Conclusion / closure

of the arbitral award 

Violation of the arbitration agreement

Requisites for an Arbitral Award to be Final

Venue:



Rendition of the arbitral award





Hearing on the qualification



Expiration of the periods

RTC

Requirements

Cost in ICA



Place of arbitration



Fees on arbitral tribunal



Assessed, reviewed or enjoinment is



Travel



Cost of expert advice



Residence ir place of business



Travel and other expenses of witness



NCR



Cost for legal representation



Fees and expenses of appointing authority

located

Time for filing the petition for Setting Aside 

3 mos



90 days

Correction and Interpretation of ICA award 

Quantification of the cause and the determination of the party liable therefore or the division between the parties



Correction of typographical and similar errors initiated by a parties



Interpretation of the awards



Correction of typographical error initiated by the Arbitral Tribunal



Additional award

Setting Aside an ICA AWARD Requirements

Recognition and Enforcement of Foreign Arbitral Awards Recognition 

Means by which a Philippine courts give legal acknowledgment to a foreign arbitral award

Confirmation 

Judicial affirmation of a domestic arbitral award

Enforcement 

Execution and implementation