Alternative Dispute

Resolution
 RIGHTS - BASE
NTEREST- BASED
ADR vs. LITIGATION
1. PRODUCT – COMPROMISE 1. PRODUCT – JUDGMENT
AGREEMENT (FACILITATED) (IMPOSED)

2. FOCUS – PERSON- 2. FOCUS – ACT-ORIENTED/

ORIENTED, TRADE-OFF OF
VALUES FOR COMPROMISE
3. OUTLOOK – FUTURE TO
RECONCILIATION
4. PROCESS – FLEXIBLE,
INFORMAL (CONFIDENTIAL)
5. RESULT – WIN-WIN
PUNISHMENT
3.OUTLOOK – BACKWARD
LOOKING TO PAST EVENT
4. PROCESS - RIGID,
FORMAL (DOCUMENTED)
5. RESULT – WIN-LOSE
 Coverage
 Gen. Rule – all adversarial disputes
and controversies
 Exception:
 Criminal liability
 Those which can’t be the subject of
compromised – Art. 2035 Civil Code
 Civil status of a person
 Validity of marriage or ground for legal
separation
 Jurisdiction of courts
 Future legitime
 Future support
 ADR Forms
1. Mediation
2. Arbitration
1. International Arbitration
2. Domestic Arbitration
3. CIAC Arbitration
4. Commercial Arbitration
3. Other Forms of ADR
a. Early Neutral Evaluation
b. Mini-Trial
c. Mediation-Arbitration
d. Conciliation
e. Negotiation
N.B. CONFLICT RESOLUTION METHOD is determined
predominantly by the disputants’ interests
MEDIATION
Mediation – a process where a NEUTRAL
THIRD PARTY assists the parties to
negotiate with the goal of reaching a
settlement that reasonably satisfies the
parties’ needs and objectives
 Facilitative or evaluative

 Nothing is binding until settlement is

reached
 Strengths: Cheaper and quicker; fosters

positive communication; avoids publicity

when it is confidential; helps maintain or
restore the relationship of disputants
"Mediation" means a voluntary
process in which a mediator,
selected by the disputing parties,
facilitates communication and
negotiation, and assist the parties
in reaching a voluntary
agreement regarding a dispute.”
(R.A. 9285, Sec. 3 [q])
ARBITRATION
Arbitration – a process by which a dispute between two
or more parties as to their legal rights and liabilities
is referred to and determined with binding effect by
the application of law by one or more persons
(arbitrators)
 Process can be adversarial or inquisitorial;
jurisdiction primarily based on arbitration
agreement (arbitration clause) or mutual
submission; case flow is well-managed; outcome is
final and legally binding as an award
 Strengths: Freedom to choose arbitrator; technical

rules are not applied; confidentiality when agreed

upon; economy; speed; and finality of outcome;
and limited intervention by courts
 ARBITRATION
ADVANTAGE DISADVANTAGE
 Predictability – disputes are  Speedy relief before the
resolved in one place and not by a arbitral tribunal UNLIKELY –
race to judgment in the court of panel must be selected
two nations before anything substantive
 Competence – arbitrators have can happen
applicable specialized commercial  In a bitter dispute – there
and legal expertise may be not only the specified
 Party participation – procedure arbitration – but also
are decided by parties – litigation – resulting from
determination of arbitrators attempts to avoid the
 Finality – final award subject to arbitration
limited grounds for setting aside  Arbitration tends toward
or modification by court splitting the difference rather
 Enforceability – most nations – than deciding either is totally
party to NY Convention (UN right or totally wrong
Convention on Recognition and
Enforcement of Arbitral Awards
 Privacy – proceeding strictly
confidential
Mediation, Arbitration and Litigation
Mediation Arbitration Litigation
Process Voluntary, flexible, Voluntary, less Formal, rigid,
informal formal than adversarial
litigation

3rd party Mediator Arbitrator Judge

Role of 3rd Facilitates Resolves the Resolves the
party communication, dispute dispute
negotiation, assists
parties in reaching
agreement
Outcome Voluntary Arbitral award Judgment
agreement,
settlement
agreement,
compromise
agreement
 OTHER ADR FORMS
“EARLY NEUTRAL EVALUATION"
means an ADR process wherein
parties and their lawyers are
brought together early 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.” (R.A. 9285, Sec. 3
NEUTRAL EVALUATION
Neutral Evaluation - a
process where a NEUTRAL
THIRD PARTY gives an
opinion on the strengths
and weaknesses of each
party’s case and their
chances of success
“MINI-TRIAL" means a
structured dispute resolution
method in which the merits of a
case are argued before a panel
comprising senior decision
makers with or without the
presence of a neutral third
person after which the parties
seek a negotiated settlement.”
(R.A. 9285, Sec. 3)
“MEDIATION-ARBITRATION" or
Med-Arb is a step dispute
resolution process involving
both mediation and
arbitration.” (R.A. 9285, Sec. 3)
 NEGOTIATION
Negotiation – is a back and
forth communication process
BETWEEN PARTIES designed
to reach an agreement when
parties have shared and
opposing interests.
CONCILIATION

Conciliation– a process
where a NEUTRAL THIRD
PARTY persuades parties
to reconsider their
reluctance to compromise
 Role of Courts
 Regular courts
 Prior to arbitration proceedings
 Any party may petition the court to determine any
question concerning the existence, validity and
enforceability of such arbitration agreement
 Party to a pending action filed in violation of the
arbitration agreement – request the court to refer the
parties to arbitration
 During arbitration proceedings
 Exercise both SUPERVISORY and ASSISTIVE role
 Constitute the arbitral body
 Decide upon a challenge to an arbitrator
 Decide issue on jurisdiction from an earlier decision
of the arbitral tribunal on such issue
 Assistance – taking of evidence in deciding on a
challenge to an arbitral award or its recognition or
enforcement
 Role of Courts
 Appellate Courts
 An agreement to refer a dispute to arbitration shall mean
that the arbitral award shall be final and binding.
Consequently, a party to an arbitration is precluded from
filing an appeal or a petition for certiorari questioning the
merits of an arbitral award.
 The remedy of an appeal through a petition for review or the
remedy of a special civil action of certiorari from a decision
of the Regional Trial Court made under the Special ADR
Rules shall be allowed in the instances, and instituted only in
the manner, provided under the same rule.
 Role of Courts
 Appellate Courts (Rule 19.12 of Special Rules of
Court on ADR)

 An appeal to the Court of Appeals through a petition for review

under this Special Rule shall only be allowed from the following
final orders of the Regional Trial Court:
a. Granting or denying an interim measure of protection;
b. Denying a petition for appointment of an arbitrator;
c. Denying a petition for assistance in taking evidence;
d. Enjoining or refusing to enjoin a person from divulging
confidential information;
e. Confirming, vacating or correcting/modifying a domestic
arbitral award;
f. Setting aside an international commercial arbitration award;
 Role of Courts
 Appellate Courts
g. Dismissing the petition to set aside an international
commercial arbitration award even if the court does not decide to
recognize or enforce such award;
h. Recognizing and/or enforcing an international commercial
arbitration award;
i. Dismissing a petition to enforce an international commercial
arbitration award;
j. Recognizing and/or enforcing a foreign arbitral award;
k. Refusing recognition and/or enforcement of a foreign arbitral
award;
l. Granting or dismissing a petition to enforce a deposited
mediated settlement agreement; and
m. Reversing the ruling of the arbitral tribunal upholding its
jurisdiction.
 Role of Courts
 Appellate Courts
 Under Rule 19.23 of Special Rule of ADR, the Court of Appeals
shall render judgment within sixty (60) days from the time the
case is submitted for decision.
 Under Rule 19.26 of Special Rule of ADR, When the Regional
Trial Court, in making a ruling under the Special ADR Rules, has
acted without or in excess of its jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and
there is no appeal or any plain, speedy, and adequate remedy in
the ordinary course of law, a party may file a special civil action
for certiorari to annul or set aside a ruling of the Regional Trial
Court.
 Role of Courts
 Appellate Courts
 Under Rule 19.36 of Special Rule of ADR,  review by
the Supreme Court is not a matter of right, but of
sound judicial discretion, which will be granted only
for serious and compelling reasons resulting in
grave prejudice to the aggrieved party. The
following, while neither controlling nor fully
measuring the court's discretion, indicate the serious
and compelling, and necessarily, restrictive nature of
the grounds that will warrant the exercise of the
Supreme Court’s discretionary powers, when the
Court of Appeals:
 Role of Courts
 Appellate Courts
a. Failed to apply the applicable standard or test for judicial
review prescribed in these Special ADR Rules in arriving
at its decision resulting in substantial prejudice to the
aggrieved party;
b. Erred in upholding a final order or decision despite the
lack of jurisdiction of the court that rendered such final
order or decision;
c. Failed to apply any provision, principle, policy or rule
contained in these Special ADR Rules resulting in
substantial prejudice to the aggrieved party; and
d. Committed an error so egregious and harmful to a party
as to amount to an undeniable excess of jurisdiction.
 Ethical Considerations
An overview of the many ethical standards
the following basic principles are:
 Competency

 Impartiality

 Maintaining Confidentiality

 Ensuring Informed Consent

 Preserving Self Determination

 Mediation is not Counseling or Legal

Advice
 Ethical Considerations
An overview of the many ethical standards
the following basic principles are:
 Avoid Exposing Parties to Harm as

Result of Mediation
 Preventing Party Abuse of Process

 Conflict of Interest