Alternative Dispute Resolution

Atty.Gloria P. Quintos

Alternative Dispute Resolution

-is 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 is a range of varied processes that serves as alternatives to court litigation. -Like court litigation, it involves the intercession or assistance or assistance of a neutral third party but the latters role varies considerably.

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 party to make their own arrangements to resolve their disputes

Governing Law

Republic Act 9285 ADR Law of 2004 A. Construction Disputes International Commercial Disputes under UNCITRAL Model Law

BENEFITS

Private Flexible Cost Effective Efficient Empowering

Nature of ADR

NO precedence created No declaration of The law of the Case

No Official record of the proceedings

Requires the cooperation of both parties

When appropriate?

When parties want confidentiality When parties desire speedy resolution of dispute When parties desire a cost effective mode of resolving disputes When parties require the assistance of technical experts When parties wishes to restore relations

When not appropriate?

A definitive resolution is required because of policy consideration such as To establish or change precedents When the outcome would affect non-disputants A full record of the proceeding is important or One or more of the parties is not committed to an ADR process

Modes of ADR

Negotiation Mediation or Conciliation Arbitration

Early Neutral Evaluation

Expert Determination Mini Trial

Negotiation

Negotiation is a back and forth communication process designed to reach an agreement when parties have both shared and opposing interest Problem solving negotiation which focuses on finding opportunities for common gains Competitive negotiation which involves positional bargaining where a party ends up a winner and the other the loser.

Mediation

Is a process where a neutral third party assist the parties to conduct their negotiations. The procedure employed as well as the mediators skills help parties progress towards their goal finding a settlement.

Early Neutral Evaluation

Is a process in which parties to litigation obtain from an experienced neutral person (an evaluator) an initial and objective oral evaluation of their case on its merits (assesses strengths and weaknesses of their arguments and evidence)

Arbitration

Is an adversarial process whereby a dispute involving legal rights and liabilities is referred to private persons (arbitrators) to determine the disputants respective rights and liabilities by applying the law on the fact.
Remember that jurisdiction is acquired by mutual submission Case flow is agreed upon and managed efficiently Outcome is final and legally binding as an award.

Expert Determination

Conflict resolution by expert determination is done when a third person acting as an expert is appointed by the parties to ascertain a question of fact. It is different from arbitration but maybe a part of it. Expert may not obtain evidence from parties Common when parties need an independent valuation

Mini Trial

In a mini trial, each side will present a limited version of their case before an independent neutral party as they would do in a trial Also in attendance are the decision-makers from both sides. Once the trial has concluded, the neutral will work with the decision makers to arrive at a settlement.

Mediation and Arbitration Classification

Court Annexed Mediation (CAM) Judicial Dispute Resolution (JDR) Appelate Court Mediation (ACM) Mediation on Wheels or Mobile Court Annexed Mediation (MCAM) Court Annexed Arbitration (CAA)

Mediation
Used to describe a wide range of interventios.

From a problem solving perspective a process which the parties together with the assistance of an acceptable impartial person or persons, voluntarily and systematically isolate issues in need of consideration to develop a range of options, consider alternatives and reach a consensual settlement that will take into account the interests and needs of all concerned.
A process that emphasizes the parties responsibility for making decisions that affect their lives

Advantages of Mediation
Mediation is Voluntary Proces is non-binding Uses an independent third party

Is confidential
Is without prejudice

The mediator works to help the parties

Discover the true issues involved in their dispute Understand the difference between what they want and what they need Understand the wants and needs of the other side Realistic in considering the possible options

Basic Skills Used

Communication skills of
Attending Listening Responding to both feeling and meaning

Ref-framing Reflective questioning Assessment and referral skills Skill to work as part of a team

Phases and/or stages:

I. THE PREPARATION PHASE

A. Initializing the conflict B. Analyzing the conflict C. Agreement on the ground rules and procedures D. Creation of safe space

Phases and/or stages:

II. THE INTERVENTION PHASE A. Exploration of the psychological and procedural issues B. Exploration of substantive issues C. Designing options D. Negotiation

-agreements in principle
-principle negotiation -Best Alternative To Negotiated Agreement (BATNA) -Worst Alternative to Negotiated Agreement (WATNA) E. Preliminary Agreement

Phases and/or stages

II. THE CONSOLIDATION PHASE A. Reality Testing B. Review, Revision and implementing

COMPARISON
LAW 1. Adversarial 2. Deals with situation As define by law 3. Uses legal language ADR 1. Non-Adversarial 2. Deals with situation as it it is on the ground. 3. Uses ordinary language

4. Training in law
5. Knowledge of legal Procedure

4. Training in negotiation
and mediation 5. Understanding of human psychology

DIVERSION OF CASES

PRE-TRIAL ------ TRIAL -----JUDGEMENT--------APPEAL CAM ACM

o JDR