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ADR Reviewer

Alternative Dispute Resolution Reviewer Response of Judiciary to the Problems of

Midterms. Delay.

APRIL 2, 2015YOURLADYLAWYER Requirements of conducting pre-trial

ALTERNATIVE DISPUTE RESOLUTION conference
By. Atty. Gabriel Robeniol Utilization on different modes of
Chapter 1: Introduction discovery
Historical Rule: 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:
Mediation Commission or through
30 August 1950
Judicial Dispute Resolution (JDR)
Contains provisions of/or on
compromise arbitration. Legislative Action:

Encourages litigants to agree upon fair Special domestic legislation passed the
prescription of arbitration, mediation and
compromise and authorize arbitration
19 June 1953 conciliation.

Enactment of arbitration law G:

Labor Code of the Philippines
Republic Act. 876
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
Philippine law has acknowledged the
Level Arbitration
international arbitration as system of
Executive Branch Contribution:
setting commercial dispute.
CIAC Construction Industry Arbitration
UNCITRAL Commission Enacted during 4 Feb 1985
Model law which the Philippines concerning constriction dispute
committed its adherence. 23 August 1998 rules of procedure
Judiciary Action governing construction arbitration

19 November 2005 CIAC revised rules
of procedure governing construction
arbitration
22 March 2010 rules on ADR for
dispute between national government
agencies: amicable settlement dipute
THE ADR Act of 2004
Dispute resolution law
An act to institutionalize use of an
alternative dispute resolution system in the
Philippines and to establish the office for
alternative dispute resolution and for other
purpose.
28 April 2004
Philippines as the Venue of ICA
RTC must refer to arbitration in
proper case
Foreign Arbitral awards must be
confirmed by RTC
The RTC has jurisdiction to review
foreign arbitral awards
Grounds for judicial review
different in Domestic and Foreign arbitral
awards.
RTC Decisions of assailed foreign
arbitral awards appealable: CA, certiorari
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ADR Reviewer
The Lawyers Role
Contribute to the promotion of ADR
Assist courts in encouraging the parties
to avail of alternative means of dispute
resolution
Explain the benefits of the ADR system.
Chapter 2: Fundamentals of Alternative
Dispute Resolution
Alternative Dispute Resolution
Expeditious and speedy manner
Methods of resolving dispute outside the
court trial system
Includes similar process in quasi
judicial agencies
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
Promote party autonomy resolution of
dispute
Freedom of the party to choose or make
their own arrangement to resolve dispute
Provides solutions that is less time
consuming, less confrontational procedure
of goodwill and lasting friendship
Wave of the future in international
relationship
Principles of ADR
Promotion of party autonomy and self
determination in dispute resolution

Recognition of ADR as an efficient tool
and an alternative procedure for the
resolution of cases
Enlisting a private sector participation
Objectives and Benefits of ADR
Speedy and impartial justice
Declogging of court dockets.
Features of ADR
ADR means used to resolve a dispute or
controversy
Exceptions: intention is to cause delay
or suspend the proceeding
ADR utilize means and methods allowed
by law
ADR is contractual in nature
ADR avoids court trial
ADR usually involves the participation of
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
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ADR Reviewer
person to convince them to come into an
agreement; non binding between eh parties.
Conciliation conciliation of dispute in
an unantagonistic manner
Neutral lawyers are brought to present
the summary of the case
Early Neutral availed of in pre trial
case
Mini trial merits of the case ar
argued in front of a panel
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
Multi Party two or more
AS to the number of issues involve:
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
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

International when the place of
business involved two states and arbitration
is outside the Philippines
Foreign when the place of business is
outside the Philippines and the arbitration is
outside the Philippines.
As to the permanency of the ADR
provider
AD HOC temporary
Institutional permanent
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
Basic Concepts of ADR
Concluding Acts or Arguments
Arbitral Award final decision of
arbitration on awarding issue or controversy
Mediated Settlement agreement
contract executed by the parties
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ADR Reviewer
Compromise or compromise agreement
avoidance of litigation or to put an end to
the one already existing
Waiver or quitclaim a statement
renouncing any right or claim
ADR providers or practitioners
Preferences of ADR
Office for ADR
ADR agency attached to DOJ
Executive Director appointed by the
president upon recommendation of
secretary of justice
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
Ordered by the court to be conducted by
the agreement of the parties
Mediator
Person conducting mediation
Mediation Practitioner
Parties in mediation
Non Party participants
Witness, resource person, or expert

Classification of Mediation
Non evidentiary or non merit based
mediated
Focuses on facilitation or
communication and negotiation between the
parties in encouraging to voluntarily settle
dispute
Institutional
Administered and conducted by or under
the rules of mediation institution
Ad Hoc
Other than institutional
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
Place of Mediation
Two disputing parties are free to agree
the place\
In the absence default is convenient to
and appropriate to all the parties
Stages of Mediation
Opening statement of mediator
Individual narration by the parties
Exchange by the parties
Summary issues
Generalization and evaluation of options
Closure
Mediation shall be held in private
Exceptions: Parties consented that there be
other persons
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ADR Reviewer
Closed and concluded
Execution of settlement agreement
Withdrawal of any party from mediation
Written declaration
Advantages of Mediation
Confidentiality in Mediation Process
Prompt, economical amicable dispute
resolution
The decision making authority rest upon
the parties
Confidential and Privileged nature of
Mediation Communication
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
Impliedly confidential
Creates reasonable expectations
Confidential Information Includes:
Communication
Oral or Written statements
Pleadings, motions, manifestations
Legal effects of Confidential and privileged
nature
A party may refuse to disclose
Not subject to discovery and
inadmissible in adversarial proceedings
People cannot be compelled to
disclose information
Parties to the dispute
Mediation
Counsel for the parties
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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

act impartially Implied

Mediator may not be called to testify The Mediator
Exceptions based on agreement, Nature of OADR list and freedom to select
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
Made public or required by the courts to Lacks qualifications, training and
make it public experience
A threat or statement of plan to inflict Mediators impartiality is in question
bodily injury Violation of ethical standards
Communication on attempt to commit a Safety will be jeopardized
crime
Unable to provide effective services
Used to approve or disprove neglect,
Conflict of interest
abandonment or exploitation
Other instances
Used to sought or complaint against
misconduct
Duties and Functions of Mediationr
Non party base agreement
Prior to Mediation
Exceptions based on Public Policy
Upgrade professional competencies
Court proceeding involving a crime or
Reasonable inquiry
felony
During the Mediation
Avoid liability on contracts arising from
mediation Confidential

Limited use of External Evidence Consent and self determination

Only such portion of the communication Promotion of respect and control of

necessary for the application of the abuse and process
exception can be admitted in evidence Mediators Cost and Fees
Privileged Mediation 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
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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 performance of his function

Assist Arbitration agreement

Agreement by the parties
Confer
Chapter 4: Arbitration in General In respect of legal relationship

Arbitration Essential elements

Process which one or more arbitrators Consent of the parties freely given

appointed in accordance with the agreement Cause of consideration

of the parties Lawful object
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
Arbitration Agreement
Voluntary
Shall be in writing and subscribed by the
Reference of a dispute to an impartial parties to be charged
body May be included in arbitration clause or
Members are chosen by the parties compromise
themselves Arbitration Clause
Compulsary arbitration Must be liberally construed consistent
Settlement of labor dispute by the with the policy of encouraging alternative
government agency which has the authority dispute resolution method
to investigate Doctrine of Separability
Domestic Arbitration agreement is independent of
International the main contact even if it contained in

Foreign Arbitration clause

Same concept lang naman to nung nasa Due process in Arbitral proceedings

chapter two na foreign domestic at international Principles of administrative due process

dapat alam nyo nay un. equally apply to arbitral proceedings

Commercial Arbitration matters arising Judicial Review and Court intervention

from all relationship of commercial in nature Proper RTC

Review Court of Appeals Rule 43 ROC
Policy on Arbitration Certiorari proper court Rule 65 ROC
Speedy and inexpensive methods Interim Measures in Arbitration

Allows the application of a party to a
judicial authority for interim conservatory
Allows filing of provisional interim
measures with regular courts whenever the
arbitral tribunal has no power to act
effectively
Chapter 5: International Commercial
Arbitration under the ADR Act of 2004 and its
IRR
International Commercial Arbitration
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
commercial arbitration
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
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ADR Reviewer
exercise of their privileged of party
autonomy and self determination
Default Rules
provisions of the IRR
Applicable only in the absence of or in
default contained in the ff: (1) an agreement
in force between the Philippines and other
state; (2) an agreement between the parties
on the applicable rules
Rules of Interpretation
Interpretation of the ADR act
due regard to the policy of law favouring
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
The subject matter of the dispute may
be located in different stage
Rules communication is deemed received
Delivered to the address personally or at
his place of business, habitual residence or
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

Arbitration is different from mediation in
that the latter is not merit or evidence based
and therefore not procedurally driven
Limitations
ADR act and its IRR is limited to the
application of rules on the waiver in the
mediation proceedings to wavier of
confidentiality and privilege only
IRR expands the application of the rules
on waiver to include non compliance with
the rules or requirements
Doctrine of Estoppel
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,
intentionally or culpable negligence, induces
another to believe certain facts to exist and
such belief in a manner that he will be
prejudiced if the former is permitted to deny
the existence of such facts
Confidentiality in ICA
General Rule
In the case of mediation, proceedings,
records, evidence, and arbitral awards are
confidentia
Exceptions:
Consent of the Parties
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ADR Reviewer
Limited purpose of disclosing to the
court relevant documents in cases where
resort to the court is allowe
Due Process in ICA
IRR mandates that the parties shall be
treated equally and shall be given full
opportunity
Reasonable opportunity
Due Process
Complied if parties are given opportunity
to be heard and present evidence
Place if ICA
Default place MANILA
Place chosen by Parties
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
Applicable Law in ICA
Governing law generally is substantive
law
Substantive Law
Law or legal system applicable to
complete resolution of dispute
Conflicts of Law/Private International Law
Part of municipal law or state which
directs courts and administrative agencies,
when confronted with a legal problem
involving a foreign element, where they
should apply a foreign law
Appointing Authority in ICA
He person or institution named in the
arbitration agreement
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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

The default appointment of an arbitrator
shall be made by the National President of
the Integrated bar of the Philippines.
Arbitrators and Arbitral Tribunal in ICA
Default number of arbitrators is three
and is due to their appointment
Default Procedure
3 arbiter each party shall appoint one
Parties agrees in the termination
Jurisdiction of Arbitral Tribunal in ICA
Jurisdiction
The right to act whether or the power to
and authority to hear and determine cause
Jurisdiction over subject matter
Subject matter of the controversy is
conferred by law
Two Instances

Sole arbiter shall be appointed by the Lack of jurisdiction

parties Excess of jurisdiction

The decision of the appointing authority
on this matter shall be immediately executor
and shall not be subject to a motion for
reconsideration or appeal
Factors in Appointing Arbitrators
Qualifications
Considerations
Advisability of appointing an arbitrator of
a nationality
Grounds for changeling an Arbitrator in ICA
Impartiality
Possession of the qualifications
Jurisdictional review of Jurisdictional Issue
Consider challenge as preliminary
question
Defer resolution
Jurisdiction over the pArties
Pre causal agreement
Interim Measures in ICA
Request shall be in writing transmitted
by reasonable means
Relieve may be granted to prevent
irreparable loss, security, preserve evidence,

Procedure for the challenge in ICA compel

Default procedure
Legal Representation in ICA
Sending of written agreement 15 days
A person may be represented by any
after becoming aware of the constitution of
person of his choice
arbitral tribunal
Determination of Rules of Procedure
The parties may request the appointing
Statement of claims
authority within 30 days to challenge
tribunals Statement of Defence
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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 of the arbitral award
Conclusion / closure Violation of the arbitration agreement
Requisites for an Arbitral Award to be Final Venue:
Rendition of the arbitral award RTC
Hearing on the qualification
Expiration of the periods Requirements

Cost in ICA Place of arbitration

Fees on arbitral tribunal Assessed, reviewed or enjoinment is

Travel located
Residence ir place of business
Cost of expert advice
NCR
Travel and other expenses of witness
Time for filing the petition for Setting Aside
Cost for legal representation
3 mos
Fees and expenses of appointing
90 days
authority
Correction and Interpretation of ICA award
Recognition and Enforcement of Foreign
Quantification of the cause and the
Arbitral Awards
determination of the party liable therefore or
the division between the parties
Recognition
Correction of typographical and similar
Means by which a Philippine courts give
errors initiated by a parties
legal acknowledgment to a foreign arbitral
Interpretation of the awards
award
Correction of typographical error
Confirmation
initiated by the Arbitral Tribunal
Judicial affirmation of a domestic arbitral
Additional award
award
Setting Aside an ICA AWARD
Enforcement
Execution and implementation
Requirements