RA 9285 (Alternative Dispute Resolution Act of 2004)

Sec 2. Policy
Promote party autonomy in the resolution of
disputes
Promote freedom of the party to make their own
arrangements
Alternative Dispute Resolution System
1. Any process or procedure
2. Used to resolve a dispute or controversy
3. Other than by adjudication of a presiding judge of a
court or an officer of a government agency
4. In which a neutral third party participates
5. To assist in the resolution of issues
6. Which includes
a. Arbitration
b. Mediation
c. Conciliation
d. Early neutral evaluation
e. Mini-trial
f. Or any combination thereof

Arbitration
1. A voluntary dispute resolution process
2. In which one or more arbitrators
3. Appointed in accordance with the agreement of the
parties or rules promulgated pursuant to this act
4. Resolve a dispute by rendering an award
Court-annexed mediation
1. Any mediation process
2. Conducted under the auspices of the court
3. After such court acquired jurisdiction of the dispute
Court-Referred Mediation
1. Mediation ordered by a court
2. To be conducted in accordance with the agreement
of the parties
3. When as action is prematurely commenced in
violation of agreement
Early Neutral Evaluation
1. An ADR process
2. Wherein parties and their lawyers are brought
together early
3. In a pre-trial phase
4. To present summaries of their cases
5. And receive a nonbinding assessment
6. By an experienced, neutral person

7.

With expertise in the subject in the substance of the

dispute

Mini-trial
1. A structured dispute resolution method
2. In which the merits of a case are argued before a
panel comprising senior decision makers
3. With or without the presence of a neutral third
person
4. After which the parties seek a negotiated settlement
Mediation
1. A voluntary process
2. In which a mediator, selected by the disputing
parties
3. Facilitates communication and negotiation
4. And assist the parties in reaching a voluntary
agreement regarding a dispute
Liability of ADR provider: same as public officers
ADR Act does not apply to resolution or settlement of:
1. Labor disputes covered by labor code
2. Civil status of persons
3. Validity of marriage
4. Any ground for legal separation
5. Jurisdiction of courts
6. Future legitime
7. Criminal liability
8. Those which by law cannot be compromised
Mediation
Scope: voluntary mediation
Principles and Guidelines
1. Information is confidential
2. Mediator, parties NPP may refuse to disclose a
mediation communication
3. Confidential information shall not be subject to
discovery & inadmissible in any adversarial
proceeding
4. Confidentiality shall still be applied even mediator
failed to act impartially
5. Mediator may not be called to testify to provide
information gathered in mediation
Who may not be compelled to disclose
1. The parties to dispute
2. Mediator
3. Counsel

4.
5.

Nonparty participants
Any person hired or engaged in connection with the
mediation
a. Secretary
b. Stenographer
c. Clerk/assistant

May be waived
o In record
o Orally- in proceeding by mediator
Privilege will not apply
1. If mediation communication is in an agreement
2. Available to the public
3. If it is a threat or statement of a plan to inflict bodily
injury
4. Intentionally used to plan a crime
5. Sought or offered to prove abuse or disprove abuse,
neglect abandonment or exploitation in which a
public agency is protection the interest of an
individual protected by law
a. Except: where a child protection matter is
referred to mediation by court or public
agency participate in child protection
mediation
6. Sought to prove or disprove a complaint of
professional misconduct or malpractice filed against
the mediator
7. Sought to prove or disprove a complaint of
professional misconduct filed against a party, NPP ,
counsel during a mediation
8. If a court or admin agency finds after a hearing in
camera that the party seeking discovery has shown
that the evidence is not otherwise available, that
there is a need for the evidence that substantially
outweighs the interest in protecting confidentiality
and mediation communication is offered in court
involving a crime or felony or proceeding to prove a
claim or defense
A mediator may not make report, assessment or
other communication unless mediation occurred or
terminated or settlement was reached
Participation of a lawyer- allowed to assist in
mediation
Place of mediation:
1. Agreement
2. Any place convenient for parties
International Commercial Arbitration

Governed by: Model Law on International

Commercial Arbiitration
Commercial Arbitration
Covers matters arising from all relationships of a
commercial nature, whether contractual or not.
Representation
In international arbitration conducted in the Philsparty may be represented by any person of his
choice
o Provided such shall not be authorized to
appear in any Philippine court or quasijudicial body
1. Unless admitted to the practice of
law
Arbitration proceedings- confidential
o Except:
1. When with consent of parties
2. For the limited purpose of
disclosing to the court of relevant
documents in cases where resort
to the court is allowed
Court however may issue protective order to
prevent or prohibit disclosure if:
o Containing secret processes where it is
shown that applicant shall be materially
prejudices by unauthorized disclosure
Interim measure of protection
Includes
o Preliminary injunction
o Appointement of receivers
o or detention, preservation, inspection of
property
Granted if arbitral tribunal has no power to act or
unable to act effectively
Granted by court upon written application
Granted
1. To prevent irreparable loss or injury
2. To provide security for the performance of
any obligation
3. To produce or preserve any evidence
4. To compel any other appropriate act or
omission
Binding upon parties
If does not comply: liable for damages
Place of Arbitration
1. Agreement

2.

Metro manila
Unless arbitral tribunal decide on a
different place

Language used in Arbitration

1. Any based on Agreement
2. English international
3. English/Filipino- domestic
Arbitration of Construction Disputes
Governed by: Constitution Industry Aritration Law
By written agreement an arbitrator may act as
mediator and vice versa
Judicial Review of Arbitral Awards
Domestic arbitral award when confirmed- enforced
in same manner as final and executory decisions of
the RTC
Confirmation shall be made by: RTC
o Except: CIAC award
Foreign Arbitral Awards
Recognition shall be filed with: RTC
o With original or authenticated copy of
award and arbitration agreement
When confirmed:
o Shall be recognized and enforced as an
arbitral award
Maybe be opposed opposed in accordance with
procedural rules by SC
May be appealed to: CA
Jurisdiction (for proceedings for recognition):
o RTC (as special proceeding) at the option of
plaintiff
1. Where arbitration was conducted
2. Where asset to be attached or
levied
3. Where parties reside
4. National Judicial Capital Region
o Notice shall be sent to parties address
1. Record of arbitration
2. Last known address
Office for Alternative Dispute Resolution
Attached agency to DOJ

GETTING TO YES

2 ways to negotiate:
1. Soft
Wants to avoid personal conflict
Makes concessions readily in order to reach
an agreement
2. Hard
Sees any situation as contest of wills
In which the side that takes the more
extereme positions and holds out longer
fares better
3. Principed Negotiation
Decides issues on the merits
Suggests that you look for mutual gains
wherever possible
When interest conflict, insists that the
result be based on fair standards
independent of the will of either side
Hard on the merits, soft on the people
Shows you how to obtain what you are
entitled to and still be decent
Enables you to be fair while protecting you
against those who would take advantage of
your fairness
Positional Bargaining
Each sides takes position argues it, and akes
concessions to reach a compromise
3 criterias
1. It should produce a wise agreement
2. Should be efficient
3. Should improve or at least not damage the
relationship between the parties
Four Basic Points of Principled Negotiation
1. Separate the people from the problem
a. 3 basic categories where people problems
are grouped
i. Perception
1. Put yourself in their
shoes
2. Discuss each others
perceptions
3. Look for opportunities to
act inconsistently with
their perceptions
4. Give them a stake in the
outcome by making sure
they participate in the
process
a. Ask their advice

b.

5.

2.

Give credit for

ideas
Make your proposals
consistent with their
values

ii. Emotion
1. Recognize and understand
emotions
2. Make emotions explicit
and acknowledgment
them as legitimate
3. Allow other side to let off
steam
4. Dont react to emotional
outburst
5. Use symbolic gestures
iii. Communication
Problems:
Negotiators may not be talking to each other as to
be understood
Even if you are talking to them, they may not be
hearing you
Misundertanding
1. Listen actively and
acknowledge what is
being said
2. Speak to be understood
3. Speak about yourself, not
about them
4. Speak for a purpose
b. How to prevent
i. Build a working relationship
ii. Face the problem, not the people
Focus on interests, not positions
a. Interests
i. Motivates people
ii. What causes you to decide
b. How to identify interests
i. Ask why (put yourself in their
shoes)
ii. Ask why not (think about their
choice)
iii. Analyze consequences
iv. Realize that each has a multiple
interests
v. The most powerful interests are
basic human needs
1. Security
2. Economic well-being
3. Sense of belonging
4. Recognition

3.

5. Control over ones life

vi. Make a list
vii. Communicate your interests
viii. Acknowledge their interests as part
of the problem
ix. Put the problem before the answer
x. Look forward, not back
xi. Be concrete but flexible
xii. Be hard on the problem & soft on
the people
Invent options for mutual gain
a. 4 major obstacles that inhibit the inventing
of an abundance of options
i. Premature judgment
ii. Searching for a single answer
iii. Assumption of a fixed pie
iv. Thinking that solving their problem
is their problem
b. What youll need to invent creative options
i. Separate the act of inventing from
judging them
1. Brainstorming
a. Before
i.
ii.
iii.
iv.

Define your purpose

Choose a few participants
Change the environment
Design an informal
atmosphere

v.

Choose a facilitator

During

b.
i.
ii.
iii.
iv.

c.
i.
ii.
iii.

Seat the participants side

by side with the problem
Clarify the ground rules
Brainstorm
Record ideas in full

After
Star the most promising
ideas
Invent improvement for
promising ideas
Set up a time to evaluate
ideas and decide

ii. Broaden options on the table

1. Multiply options by
shuttling between the
specific and general (circle
chart) [four types of
thinking]
a. Think about a
particular
problem; factual
situation you
dislike
b. Descriptive
analysisdiagnose an
existing problem

4.

in general terms;
sort problems in
categories
suggest causes
c. Consider what
ought to be done
d. Come up with
some specific
and feasible
suggestions
2. Look through the eyes of
different experts
3. Invent agreements of
different strengths
4. Change the scope of
proposed agreements
iii. Search for mutual gains
1. Identify shared interests
a. Shared interests
lie latent in every
negotiation
b. Shared interests
are opportunities
(make a goal)
c. Stress shared
interests
2. Ask for heir preferences
iv. Invent ways of making their
decisions easy
1. The other side is more
likely to accept a solution
if it seems the right thing
to do
a. Fair
b. Legal
c. honorable
Insist that the result be based on some objective
standard
a. Fair standards
b. Fair procedures
c. How to discuss with other side
i. Frame each issue as a joint search
for objective criteria
ii. Reason and be open to reason
iii. Never yield to pressure

3 stages of negotiation
1. Analysis
Simply diagnosing the the situation
Gathering, organizing information
2. Planning

3.

Generating options
Discussion
Understanding each side

What if they are more powerful?

Develop your BATNA
Note

Do not insist on a bottom line

Position that is not to be changes

BATNA
Purpose: to produce something better than the
results you can obtain without negotiating
3 distinct operations in generating BATNA
1. Inventing a list of actions you might
conceivably take if no agreement is reached
2. Improving some of the more promising
ideas and converting them into practical
alternatives
3. Selecting the one option that seems best
What if they wont play?
Use Negotiation Jujitsu
3 basic approaches for focusing their attention on the merits
1. What you can do
2. What they can do
3. What a third party can do
Negotiation Jujitsu
Do not push back
When they assert their positions, do not reject them
When they attack your ideas, dont defend them
When they attack you, dont counterattack
Instead of pushing back, sidestep their attack and
deflect it against the problem
What if they use dirty tricks?
The best way to respond to such tricky tactics is to explicitly
raise the issue in negotiations, and to engage in principled
negotiation to establish procedural ground rules for the
negotiation.
General types of tricky tactics
1. Parties may engage in deliberate deception about
the facts, their authority, or their intentions. The
best way to protect against being deceived is to seek
verification the other side's claims. It may help to ask
them for further clarification of a claim, or to put the
claim in writing. However, in doing this it is very

2.

3.

important not to bee seen as calling the other party

a liar; that is, as making a personal attack.
Psychological warfare. When the tricky party uses a
stressful environment, the principled party should
identify the problematic element and suggest a
more comfortable or fair change. Subtle personal
attacks can be made less effective simply be
recognizing them for what they are. Explicitly
identifying them to the offending party will often put
an end to suck attacks. Threats are a way to apply
psychological pressure. The principled negotiator
should ignore them where possible, or undertake
principled negotiations on the use of threats in the
proceedings.
Positional pressure tactics which attempt to
structure negotiations so that only one side can
make concessions. The tricky side may refuse to
negotiate, hoping to use their entry into negotiations
as a bargaining chip, or they may open with extreme
demands. The principled negotiator should
recognize this as a bargaining tactic, and look into
their interests in refusing to negotiate. They may
escalate their demands for every concession they
make. The principled negotiator should explicitly
identify this tactic to the participants, and give the
parties a chance to consider whether they want to
continue negotiations under such conditions. Parties
may try to make irrevocable commitments to certain
positions, or to make-take-it-or-leave-it offers. The
principled party may decline to recognize the
commitment or the finality of the offer, instead
treating them as proposals or expressed interests.
Insist that any proposals be evaluated on their
merits, and don't hesitate to point out dirty tricks.