JUDICIAL DISPUTE RESOLUTION AND OTHER ALTERNATIVE DISPUTE RESOLUTION (ADR) INITIATIVES

TERESITA DY-LIACCO FLORES

CA Associate Justice (Ret.) 28 February 2013 PECABAR, Makati City

ADR under the following relevant laws

R.A. 9285: Alternative Dispute Resolution of 2004 R.A. 876: The Arbitration Law (1953) E.O. 1008: Construction Industry Arbitration Law (1985) Labor Code R.A. 7160: Local Government Code (1991)

R.A. 6734: Organic Act of the ARMM

P.D. 1083: Code of Muslim Personal Laws of the Philippines

-- Agama Arbitration Council (1997) R.A. 8731: The Indigenous Peoples Right Act Civil Code Model Law on International Commercial Arbitration (UN commission on International Trade Law) (June 21, 1985)

The ADR Law (R.A. No. 9285) An Act to institutionalise the use of Alternative Dispute Resolution (ADR) in the Philippines.

Sec. 2. Declaration of Policy It is hereby declared the policy of the state to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes. Towards this end, the state shall encourage and promote the use of ADR as an important means to achieve speedy and impartial justice and declog court dockets Likewise the state shall enlist active private sector participation in the settlement of disputes through ADR.
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Rationale

for

Court ADR Initiatives

To promote party autonomy in conflict resolutions;

To declog court dockets;

To induce
cost-effective process in conflict resolutions;

To promote and achieve speedy and impartial justice;

To induce reconciliation of parties and promote harmonious and peaceful communal relations.
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To enhance access to justice by the marginalised sectors;

ADR also recognized in Civil Code

Title XIV. COMPROMISES AND ARBITRATIONS CHAPTER 1. COMPROMISES

ART. 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. (1809a)
ART. 2029. The court shall endeavor to persuade the litigants in a civil case to agree upon some fair compromise. (n)

ART. 2030. Every civil action or proceeding shall be suspended: a) If willingness to discuss a possible compromise is expressed by one or both parties; or b) If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused the offer. The duration and terms of the suspension of the civil action or proceeding and similar matters shall be governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules of court shall likewise provide for the appointment and duties of amicable compounders. (n)

ART. 2031. The courts may mitigate the damages to be paid by the losing party who has shown a sincere desire for a compromise. (n) ART. 2035. No compromise upon the following questions shall be valid:
1. 2. 3.

4.
5. 6.

The civil status of the persons; The validity of a marriage or a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; Future legitime. (1814a)

CHAPTER 2. ARBITRATIONS

ART. 2042. The same persons who may enter into a compromise may submit their controversies to one or more arbitrators for decisions. (1820a)
ART. 2043. The provisions of the preceding Chapter upon compromises shall be applicable to arbitrations. (1821a) ART. 2044. Any stipulation that the arbitrators award or decision shall be final, is valid, without prejudice to Articles 2038, 2039, and 2040. (n)

Settlement of Disputes Parties in conflict choose between:

Judicial Mode, hence, Adversarial Method,

OR Non-adversarial Method

DISTINCTIONS BETWEEN MEDIATION AND LITIGATION

MEDIATION/CONCILIATION 1. PRODUCT COMPROMISE 2. MAKER - PARTIES 3. FOCUS-PERSON ORIENTED TRADE-OFF OF VALUES 4. OUTLOOK FUTURE, TO RECONCILIATION 5. PROCESS FLEXIBLE, INFORMAL 6. RESULT WIN-WIN
LITIGATION 1. PRODUCT JUDGMENT 2 .MAKER - JUDGE 3. FOCUS ACT- ORIENTED PUNISHMENT 4. OUTLOOK BACKWARD, TO PAST EVENT 5. PROCESS- RIGID, FORMAL 6. RESULT WIN-LOSE

Comparative Advantage of ADR over adversarial method:

MEDIATION

ADJUDICATION
1. procedure is under the

1. based on negotiation 2. parties have direct role 3. flexible procedure 4. speedy 5. cheap 6. promotes harmonious relationship/ reconciliation

Rules of Court; hence, rigid and formal 2. parties are always represented by lawyers; hence:
Indirect role of parties Expensive process

3. Lengthy 4. Legalistic 5. Punitive 6. Prolonged hostility

COURT-ANNEXED MEDIATION
Encompasses:
Court-Annexed Mediation (CAM) Mobile Court-Annexed Mediation (MCAM) Judicial Dispute Resolution (JDR) Appellate Court Mediation (ACM)

Concept of court diversion of pending cases under CAM

3 Stages Stage 1 Judge refers the parties to Philippine Mediation Center (PMC) for the mediation of their dispute by trained and accredited mediators.
Stage 2 JDR Upon failing to secure a settlement of the dispute during first stage, a second attempt is made at a JDR stage where a JDR judge sequentially becomes a mediator-conciliator-early neutral evaluator in a continuing effort to secure settlement. If still a failure, pre-trial and trial before another judge follow.

Stage 3 During the appeal, covered cases are referred to the PMC-ACM Unit for mediation Appellate Courts: a. Court of Appeals appeals from decisions of Regional Trial Courts and quasi-judicial bodies. b. Regional Trial Courts appeals from decisions of first level courts Ultimate goal of CAM and Katarungang Pambarangay Law is to restore the role of the courts as the forum of last recourse to be resorted to only after all prior earnest efforts to arrive at private accommodation and resolution of disputes have failed.

Mandatory coverage for CAM and JDR

All civil cases and the civil liability of criminal cases covered by the Rule on Summary Procedure, including the civil liability of crimes charging violation of B.P. 22, except those which by law may not be compromised; Special proceedings for the settlement of estates; All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law The civil aspect of Quasi Offenses under Title 14 of the Revised Penal Code;

The civil aspect of estafa, theft and libel.

The civil aspect of Quasi Offenses under Title 14 of the Revised Penal Code;

The following cases shall not be referred to CAM and JDR: Civil cases which by law cannot be compromised Article 2035, New Civil Code:
Civil status of persons Validity of marriage or legal separation Any ground for legal separation

Future Support
Jurisdiction of Courts Future legitime

 Other criminal cases other than those under

paragraphs 4 to 6 above; Habeas Corpus petitions; All cases under Republic Act No. 9262 (Violence against Women and Children); and Cases with pending application for Restraining Orders/Preliminary Injunctions.

 Selective and Optional Mediation Under the prohibited cases for referral to CAM and JDR, selective mediation may take place on the choice of the parties whereby they inform the court that they agree to undergo mediation in some aspects of the case, e.g., custody of minor children, separation of property or support pendente lite or in criminal cases where parties agree to submit the civil aspects despite the offense not being mandatorily covered by CAM.

Mediation Fees

Trial Courts The Clerks of Court of the Regional Trial Courts and the First-Level Courts shall collect the amount of FIVE HUNDRED PESOS (P500.00) upon the filing of the following:
1.

Complaint or an Answer with a mediatable permissive counterclaim or cross-claim, complaint-inintervention, third-party complaint, fourth-party complaint, etc. in civil cases, a Petition, an Opposition and a Creditors Claim in Special Proceedings;

3. complaint/Information for estafa, theft and libel cases

where damages are sought; 4. Complaint/Information for Quasi Offenses under Title 14 of the Revised Penal Code; 5. Intellectual Property Cases 6. Commercial or corporate cases; and 7. Environmental cases
The Clerks of Court of the First Level Courts

shall collect the amount of FIVE HUNDRED PESOS (P500.00) upon the filing of a Notice of Appeal with the Regional Trial Court.

 The Clerks of Court of the Regional Trial Court shall collect

the amount of ONE THOUSAND PESOS (P1,000.00) upon the filing of a Notice of Appeal with the Court of Appeals or the Sandiganbayan.
Court of Appeals, Sandiganbayan and Court of Tax Appeals The Clerks of Courts of the Court of Appeals, Sandiganbayan and Court of Tax Appeals shall collect the amount of ONE THOUSAND PESOS (P1,000.00) upon the filing of a mediatable case, petition, special civil action, a comment/answer to the petition or action and the appellees brief. The Clerk of Court of the Court of Tax Appeals shall also collect the amount of ONE THOUSAND PESOS (P1,000.00) for the appeals from the decision of a CTA Division to the CTA En Banc.

 A pauper litigant shall be exempt from contributing to

the Mediation Fund. Despite such exemption, the court shall provide that the unpaid contribution to the mediation fund shall be considered a lien on any monetary award in a judgment favorable to the pauper litigant. An accused appellant shall also be exempt from contributing to the Mediation Fund. The amount collected shall be receipted and separated as part of a special fund known as Mediation Fund and shall accrue to the SC-PHILJA PMC Fund, disbursements from which are and shall be pursuant to guidelines approved by Supreme Court.

 The funds shall be utilized for the promotion of CAM

and other ADR, training of mediators, payment of mediators fees and operating expenses for technical assistance and organizations/individuals, transportation/communication expenses, photocopying, supplies and equipment, expense allowance and miscellaneous expenses whenever necessary subject to auditing rules and regulations. In view thereof, the mediation fees shall not form part of the Judicial Development Fund under PD 1948 nor of the Special Allowances granted to justices and judges under RA 9227.

COURT ANNEXED MEDIATION (CAM)

Procedure 1. After the last pleading has been filed, the judge shall issue an order requiring the parties to forthwith appear before the concerned Philippine Mediation Center (PMC) to start the process for the settlement. On the same date, the court shall give copies of the order for mediation and other pertinent pleadings filed to the PMC.

COURT ANNEXED MEDIATION (CAM)

Procedure 1. After the last pleading has been filed, the judge shall issue an order requiring the parties to forthwith appear before the concerned Philippine Mediation Center (PMC) to start the process for the settlement. On the same date, the court shall give copies of the order for mediation and other pertinent pleadings filed to the PMC.

2. Individual parties are required to personally appear

or through fully authorized representatives by Special Power of Attorney to negotiate and enter into a compromise.
3. Juridical entities such as corporations or

partnerships, shall be represented by a ranking officer fully authorized by Board Resolution to offer, negotiate, accept, decide and enter into a compromise agreement without need of further approval by or notification to the authorizing party.

4. On the date set in the order, the parties, while at the

PMC Unit, shall proceed to select a mutually acceptable mediator from among the list of accredited mediators. If no agreement is reached, the Mediation Staff Officer in the PMC Unit shall recommend three (3) mediators from whom said r shall be considered an officer of the court while performing his duties as such or in connec officer shall choose by lot the one who will mediate the dispute.
5. The Mediator shall be considered an officer of the

court while performing his duties as such or in connection therewith.

The concerned Mediator shall forthwith start the mediation process unless the parties and mediator agree to reset the initial mediation conference which shall not be later than five (5) days from the original date.

At the initial conference, the Mediator shall explain to both parties the mediation process, stressing the benefits of an early settlement based on serving their mutual interests rather than the legal positions taken by them.

With the consent of both parties, the Mediator may hold separate caucuses with each party to determine their respective real interests in the dispute. Thereafter, another joint conference between the parties shall take place, to consider various options that may resolve the dispute through reciprocal concessions and on terms that are mutually beneficial. Proceedings are confidential. Proceedings must not be recorded. Guide notes must be destroyed. Should such record exists, they shall not be admissible as evidence in any other proceeding.

If settlement is unsuccessful, case is returned to referring judge (or in appropriate cases the JDR judge) for further proceedings.

SANCTIONS BY THE COURT For non-appearance or abusive conduct Censure Reprimand To reimburse cost and attorneys fees to appearing party. To lift the sanctions, a motion for reconsideration concurred in by the mediator must be filed, heard and based on a justifiable cause duly proved.

Duration of Mediation in PMC

Not exceeding 30 days computed from the date when

the parties first appeared for initial conference as stated in the court order. Extendible for another 30 days as granted by the court. Suspension of Periods The period during which the case is undergoing mediation shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary proceedings.

Settlements
Compromise Agreement to be submitted to the court

for judgment upon compromise

or
submission of satisfaction of claims.
If parties file a motion for mutual withdrawal, court orders dismissal of complaint and counter-claim.

JUDICIAL DISPUTE RESOLUTION (JDR)

Authorized Judges Unless otherwise directed by the Supreme Court, all judges who have undergone orientation in JDR procedures and completed their training in mediation, conciliation and neutral evaluation. Procedure Two (2) Judges: JDR Judge and Trial Judge

 JDR Judge is the judge to whom the case has been

originally raffled. At the initial stage of the pre-trial conference, the JDR judge briefs the parties and counsels of the CAM and JDR processes. Thereafter, he issues an Order of Referral of the case to CAM and directs parties and their counsels to proceed to the PMC Unit bringing with them copies of the Order of Referral and major pleadings (complaint, answer etc.). The JDR judge shall include in said Order or in another Order the pre-setting of the case for JDR not later than forty-five (45) days from the time the parties first personally appeared at the PMC Unit so that JDR will be conducted immediately if the parties do not settle at CAM.

 All incidents or motions filed during the first stage

shall be dealt with by the JDR judge. If JDR is not conducted because of the failure of parties to appear, the JDR judge may impose the appropriate sanctions and shall continue with the proceedings of the case.

 If the parties do not settle their dispute at CAM, the

parties and their counsels shall appear at the preset date before the JDR judge who will then conduct the JDR process as mediator, neutral evaluator and/or conciliator in order to actively assist and facilitate negotiations among the parties for them to settle their dispute. As mediator and conciliator, the judge facilitates the settlement discussions between parties and tries to reconcile their differences. As a neutral evaluator, the judge assesses the relative strengths and weaknesses of each party's case and makes a non-binding and impartial evaluation of the chances of each party's success in the case. On the basis of such neutral evaluation, the judge persuades the parties to a fair and mutually acceptable settlement of their dispute.

 The JDR Judge shall not preside over the trial of the

case when parties do not settle their dispute at JDR.

WHAT TO DO IF JDR FAILS?

Multiple Sala Court - If the case is not resolved during JDR, it shall be raffled to another branch for the pre trial proper up to judgment. A different rule: For cases with pending applications for restraining orders/preliminary injunctions, the judge to whom the case was raffled shall rule on the said applications. During the pre-trial stage, the judge refers the case to CAM. If the parties do not settle at CAM, the case will be raffled to another branch for JDR. If the parties do not settle at JDR, the case will be returned to the branch that ruled on the applications for the pre-trial proper and up to

Single Sala Court. Unless otherwise agreed upon as provided below, the JDR proceedings will be conducted by the judge of the pair court, if any, otherwise, by the judge of the nearest court as determined by the concerned Executive Judge. The JDR proceedings shall be conducted at the station where the case was originally filed. The result of the JDR proceedings shall be referred to the court of origin for appropriate action e.g. approval of the compromise agreement, trial, etc. Notwithstanding the foregoing, the parties may file, by joint written motion, a request before commencement of the JDR proceedings that the court of origin shall conduct the JDR proceedings and trial.

Family Courts Unless otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated as a family court, shall be conducted by a judge of another branch through raffle. However, if there is another family court in the same area, the family court to whom the case was originally raffled shall conduct JDR proceedings and if no settlement is reached, the other family court shall conduct the pretrial proper and trial.

Notwithstanding the foregoing, the parties may file, by joint written motion, a request before commencement of the JDR proceedings that the family court to whom the case was originally raffled, shall conduct the JDR proceedings and trial. Despite the non-mediatable nature of the principal case like annulment of marriage, other issues such as custody of children, support, visitation, property relations and guardianship may be referred to CAM and JDR to limit the issues for trial.

 Commercial, Intellectual Property and

Environmental Courts

Unless otherwise agreed upon as provided below, the JDR proceedings in areas where only one court is designated commercial/intellectual property/environmental, hereafter the special courts, shall be conducted by another judge through raffle and not the judge of the special courts. Where settlement is not reached, the judge of the special courts shall be the trial judge. Any incident or motion filed before the pre-trial stage shall be dealt with by the special courts that shall refer the case to CAM.

Notwithstanding the foregoing, the parties may file, by joint written motion, a request before commencement of the JDR proceedings that the special courts to whom the case was originally raffled, shall conduct the JDR proceedings and trial.

JDR During Trial

Cases may be referred to JDR even during the trial stage upon written motion of one or both parties indicating willingness to discuss a possible compromise. If the motion is granted the trial shall be suspended and the case referred to JDR which shall be conducted by another judge through raffle in multiple sala courts. If settlement is reached during JDR, the JDR court shall take appropriate action thereto i.e. approval/disapproval of the compromise agreement. If settlement is not reached at JDR, the case is returned to the referring court for continuation of trial.

In single sala courts, the JDR shall be conducted by the nearest court (or pair court, if any) regardless of the level of the latter court. The result of the JDR proceedings shall be referred to the court of origin for appropriate action e.g. approval of the compromise agreement, trial, etc. The parties may, by joint written motion, despite confidential information that may be divulged during JDR proceedings, file a request that their case be not transferred to other courts for JDR and that they agree to have the trial judge continue the trial should the case not be settled through JDR

Duration of JDR proceedings

Thirty (30) days for Judges of First Level Courts. Sixty (60) days for Judges of Second Level Courts. Extension may be granted upon discretion of the JDR

judge if there is a high probability of settlement and upon joint written motion of the parties. Both periods shall be computed from the date when the parties first appeared for JDR proceedings as directed in the respective orders issued by the judge. As far as practicable, JDR conferences shall be set not more than two (2) weeks apart so as to afford parties ample time to negotiate meaningfully for settlement.

In criminal cases covered by CAM & JDR, where settlement on the civil aspect has been reached but the period of payment in accordance with the terms of settlement exceeds one (1) year, the case may be archived upon motion of the prosecution with notice to the private complainant and approved by the judge.

Suspension of periods
The period during which the case is undergoing JDR proceedings shall be excluded from the regular and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under summary proceedings.

Judgments/Decisions in JDR
Decisions/ Judgments approving the compromise of parties through the efforts of the judge as a mediator, conciliator or neutral evaluator shall contain a statement to the effect that the Judgments/Decisions were achieved through JDR. This is to distinguish Judgments/Decisions approving compromise agreements secured through CAM. Copies of said Judgments/Decisions shall be submitted to the Philippine Mediation Center Unit for documentation purposes.

PROVISIONS COMMON TO BOTH CAM & JDR

1. Confidentiality Any and all matters discussed, or communications made, including requests for mediation, and documents presented during the mediation proceedings before the Philippine Mediation Center or the JDR proceedings before the trial judge, shall be privileged and confidential, and the same shall be inadmissible as evidence for any purpose in any other proceedings. However, evidence or information that is otherwise admissible, does not become inadmissible solely by reason of its use in mediation or conciliation.

Further, the JDR judge shall not pass any information obtained in the course of conciliation, early neutral evaluation to the trial judge or to any other person. This prohibition shall include all court personnel or any other person present during such proceedings. All JDR conferences shall be conducted in private.

2. Active participation of parties in Dispute Resolution

Role of Lawyers in CAM and JDR Proceedings Lawyers may attend mediation proceedings in the role of an adviser and consultant to their clients, dropping their combative role in the adjudicative process and giving up their dominant role in judicial trials. They must accept a less directive role in order to allow the parties more opportunities to craft their own agreement. In particular, they shall perform the following functions: 1. Help clients comprehend the mediation process and its benefits; and allow them to assume greater personal responsibility in making decisions for the success of mediation in resolving the dispute.

2. Discuss with clients the following:

The substantive issues involved in the dispute. Prioritization of resolution in terms of importance to client Understanding the position of the other side and the underlying fears, concerns and needs underneath that position Need for more information or facts to be gathered or exchanged with the other side for informed decision making Possible bargaining options but stressing the need to be open-minded about other possibilities. The best, worst and most likely alternatives to a negotiated agreement.

3. Assist in preparing a compromise agreement that is not contrary to law, morals, good customs public order or public policy so that the same may be approved by the court, paying particular attention to issues of voluntary compliance of what has been agreed upon, or otherwise to issues of enforcement in case of breach. 4. Assist, wherever applicable, in the preparation of a manifestation of satisfaction of claims and mutual withdrawal of complaint and counterclaim as basis for the court to issue an order of dismissal. Source: Consolidated Guidelines to Implement the Expanded Coverage of CAM and JDR ( 17 July, 2008)

Arbitration under Code of Muslim Personal Laws of the Philippine (PD 1083)
Agama Arbitration Council May be constituted by the Shariah District Court and Shariah Circuit Court in appropriate cases Composition: Clerk of Court as the Chairman and one representative from each party. Tasks: To undertake all necessary steps to resolve conflicts between the parties To submit to the Court a report on the result of arbitration. Court may issue corresponding order based on the

report and such other evidence as may be allowed.

R.A. 8371: The Indigenous Peoples Rights Act

Chapter 3, Section 7. Right to Ancestral Domains

-- the rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include: xxx xxx xxx (h) Right to Resolve Conflict. Right to resolve land conflicts in accordance with the customary laws of the area where the land is located, and only in default thereof shall the complainants be submitted to amicable settlement and to the Courts of Justice whenever necessary.

Construction Industry Arbitration Law (CIAC, E.O. 1008)

Covers arbitration of construction disputes Creates arbitration machinery in the construction industry Within the Construction Industry Authority of the Philippines (CIAP) Construction Industry Arbitration Commission (CIAC) 1985 Both parties must agree to voluntary arbitration to allow CIAC to have jurisdiction. Arbitral award can be enforced through judicial proceeding against the losing party Chairman and 2 members Sole or 3 arbitrators A CIAC Arbitral award need not be confirmed by the Regional Trial Court to be executory under said law.

LOCAL GOVERNMENT CODE (RA 7160)

Barangay Justice System Coverage:

Conciliation Mediation CONCILIATION is a purely voluntary process. The commencement and progress thereof are dependent on the willingness of the parties to continue with it, in the expectation of an eventual settlement mutually agreed to.

Other ADR processes in OTHER JURISDICTIONS

Early Neutral Evaluation; Mini Trial; Commercial Arbitration. In the Philippines, this is also popular specially in the business sector.
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What

they are:

1. "Early Neutral Evaluation" An ADR process wherein parties and their lawyers are brought together early after the onset of conflict or in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute;
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HOW

TO

ENE

1. A NEUTRAL Evaluator, with expertise on the subject of the case, is chosen by the parties;
2. A Pre-session Conference is held by the Neutral Evaluator to deliver instructions to parties and counsels; 3. Parties submit to Neutral Evaluator written summaries and evaluation statements about the case. It may include documents and written testimony;
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HOW TO ENE - (cont...)

4. At the evaluation Session, attorneys present

the summary of their clients case and the neutral Evaluator questions the attorneys in a back and forth process designed to clarify issues and identify the hot spots.

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HOW TO ENE - (cont...)

5. Neutral Evaluator prepares a short written

evaluation. Holding this to himself and before presenting this to the parties and counsels, Neutral Evaluator may ask the parties if they want to use the Evaluator as a Settlement Neutral. If the answer is yes, Evaluator starts the settlement process between the parties.
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HOW TO ENE - (cont...)

6.

If the answer is NO, the Evaluator shall present his short written evaluation of the case to counsels and parties.

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HOW TO ENE - (cont...)

7. The written evaluation may suggest what amounts parties may net if case is filed or if trial proceeds or what the settlement range should be or some other sort of guidance. 8. Then, parties and counsels decide what to do.
John S. Blackman, Neutral Evaluation-

ADR Technique Whose Time has Come.

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BENEFITS

OF

NEUTRAL EVALUATION

1. It gives parties and counsels good neutral feedback on the case before rushing to file case or to trial and spend outrageously on a case not worth it;
2. Helps parties and counsels to focus on issues that really matter rather than chase phantom issues that may only demonize the court; 3. Provides a reality check that may bring back the parties to their senses and opt for settlement.
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2. "Mini-Trial

It is not a trial!

It is a structured dispute resolution method in which the parties present the merits of a case thru a highly summarized version before a panel of officials. Each party chooses an agent or advocate to sit in the panel. It may or may not have a chair who is, a neutral, and may take the role of an expert or advisor. The merits of the case are argued before the panel and the panelists of the parties are the ones involved in arriving at a settlement, hoping that the case will end in a negotiated settlement. The parties are not bound by the outcome.. In fact, parties may end the process after an impasse.
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HOW

TO

Mini Trial

1. Parties choose their agent or advocate who shall sit in the panel;

2. If desired by both parties, they shall agree on a neutral to sit as chair of the panel;
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HOW

TO

Mini Trial

(cont ...)

3. Counsels of the parties shall present their case to the panel usually without live testimony but shall present an outline of the evidence of the parties; 4. Counsels shall make an opening and closing statement;

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HOW

TO

Mini Trial

(cont ...)

5.

The chosen panelists of the parties shall work out a settlement. They are the decision makers.
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Why are the panelists, rather than the parties, involved in the settlement?

REASONS:
1. Parties tend to inject emotion or bias

into negotiations and shall seldom compromise unless they hear a damaging information that tends to diminish their claim or defence;

2. Panelists tend to be well seasoned and experienced in similar matters.

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Why are the panelists, rather than the parties, involved in the settlement? (cont ...)

Examples of Panelists:

a) representative of insurance

carrier for the party; b) top level management man of the business/party; c) privately retained consultants with technical expertise on the subject.
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3. "Commercial Arbitration

An arbitration is "commercial if it covers matter arising from all relationships of a commercial nature, whether contractual or not.
Kinds:
1.

domestic; 2. international.

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Advantages
1. 2. 3. 4. 5. 6. 7.

of

Arbitration

Neutrality of Arbitrators; Technical Expertise of Arbitrators; Privacy and Confidentiality; Speed of the Disposition; Non-Formal and More Flexible Procedure; Flexibility in the Choice of Law/s; Better Enforcement of Arbitral Awards vs. Judicial Decisions.

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