Beruflich Dokumente
Kultur Dokumente
Assisted Negotiation
Process
Assistance
Negotiation: Parti
es and their
attorneys attempt
to resolve a
dispute through
direct discussions
with one another.
Outcome
Prediction
Convening: Th
e use of a
neutral to help
parties
determine
whether and
how to pursue
negotiations.
Early Neutral
Evaluation: Th
e use of a
neutral
evaluator
to
give opinions
on each partys
case and the
likely
court
Facilitation: T outcome.
he uses of a
neutral to help a Fact
group of people Finding: The
conduct
use of a neutral
productive
to investigate,
discussions
analyze, and
about complex report to parties
or potentially regarding
controversial
factual
issues.
questions.
Mediation: A
voluntary
process
involving the
use of a neutral
to help parties
reach
agreement by
clarifying
issues,
exploring
settlement
options,
and
evaluating how
best to advance
their respective
interests.
Adjudication
Court: Parties
litigate
their
case in court,
presenting
evidence and
arguments to a
judge and, as
appropriate, a
jury. The court
issues a binding
decision subject
to any rights of
appeal.
Administrative
Court: Parties
try their case
before
an
agency
administrative
law judge for a
binding
Non-binding
Arbitration: T decision subject
he use of a to any rights of
neutral
to appeal.
review
evidence, hear Binding
arguments, and Arbitration: T
issue a non- he use of a
binding
neutral
to
decision.
review
evidence, hear
Summary Jury arguments, and
Trial: Parties
issue a binding
present their decision.
case to a jury
for a nonbinding
decision.
Non-Binding Outcome
Binding
Outcome
profession in recent years. In fact, some courts now require some parties
to resort to ADR of some type, usually mediation, before permitting the
parties' cases to be tried (indeed the European Mediation Directive
(2008) expressly contemplates so-called "compulsory" mediation; this
means that attendance is compulsory, not that settlement must be reached
through mediation). The rising popularity of ADR can be explained by the
increasing caseload of traditional courts, the perception that ADR imposes
fewer costs than litigation, a preference for confidentiality, and the desire
of some parties to have greater control over the selection of the individual
or individuals who will decide their dispute. Some of the senior judiciary
in certain jurisdictions (of which England and Wales is one) are strongly
in favour of this (ADR) use of mediation to settle disputes.
ADR is generally classified into at least four
types: negotiation, mediation, collaborative
law,
and arbitration.
(Sometimes a fifth type, conciliation, is included as well, but for present
purposes it can be regarded as a form of mediation. See conciliation for
further details.) ADR can be used alongside existing legal systems such as
sharia courts within common law jurisdictions such as the UK. ADR
traditions vary somewhat by country and culture. There are significant
common elements which justify a main topic, and each country or region's
difference should be delegated to sub-pages.
Alternative Dispute Resolution is of two historic types. First,
methods for resolving disputes outside of the official judicial mechanisms.
Second, informal methods attached to or pendant to official judicial
mechanisms. There are in addition free-standing and or independent
methods, such as mediation programs and ombuds offices within
organizations. The methods are similar, whether or not they are pendant,
and generally use similar tool or skill sets, which are basically sub-sets of
the skills of negotiation.
ADR includes informal tribunals, informal mediative processes,
formal tribunals and formal mediative processes. The classic formal
tribunal forms of ADR are arbitration (both binding and advisory or nonbinding) and private judges (either sitting alone, on panels or over
summary jury trials). The classic formal mediative process is referral for
mediation before a court appointed mediator or mediation panel.
Structured transformative mediation as used by the U.S. Postal Service is
a formal process. Classic informal methods include social processes,
referrals to non-formal authorities (such as a respected member of a trade
or social group) and intercession. The major differences between formal
and informal processes are (a) pendency to a court procedure and (b) the
possession or lack of a formal structure for the application of the
procedure.
For example, freeform negotiation is merely the use of the tools
without any process. Negotiation within a labor arbitration setting is the
use of the tools within a highly formalized and controlled setting. Calling
upon an organizational ombudsman's office is never, by itself, a formal
procedure. (Calling upon an organizational ombudsman is always
voluntary; by the International Ombudsman Association Standards of
Practice, no one can be compelled to use an ombuds office.)
Organizational ombuds offices refer people to all conflict management
options in the organization: formal and informal, rights-based and interestbased. But, in addition, in part because they have no decision-making
authority, ombuds offices can, themselves, offer a wide spectrum of
informal options.
This spectrum is often overlooked in contemporary discussions of
ADR. ADR often refers to external conflict management options that
are important, but used only occasionally. An organizational ombuds
office typically offers many internal options that are used in hundreds of
cases a year. These options include:
delivering respect, for example, affirming the feelings of a visitor,
while staying explicitly neutral on the facts of a case,
active listening, serving as a sounding board,
3.
Beyond the basic types of alternative dispute resolutions there are other
different forms of ADR:
Case evaluation: a non-binding process in which parties present the
facts and the issues to a neutral case evaluator who advises the
parties on the strengths and weaknesses of their respective positions,
and assesses how the dispute is likely to be decided by a jury or other
adjudicator.
Early neutral evaluation: a process that takes place soon after a case
has been filed in court. The case is referred to an expert who is asked
to provide a balanced and neutral evaluation of the dispute. The
evaluation of the expert can assist the parties in assessing their case
and may influence them towards a settlement.
Family group conference: a meeting between members of a family
and members of their extended related group. At this meeting (or
often a series of meetings) the family becomes involved in learning
skills for interaction and in making a plan to stop the abuse or other
ill-treatment between its members.
Neutral fact-finding: a process where a neutral third party, selected
either by the disputing parties or by the court, investigates an issue
and reports or testifies in court. The neutral fact-finding process is
particularly useful for resolving complex scientific and factual
disputes.
Ombuds: third party selected by an institution for example a
university, hospital, corporation or government agency to deal with
complaints by employees, clients or constituents. An organizational
ombudsman works within the institution to look into complaints
independently and impartially.
"Alternative" dispute resolution is usually considered to be alternative
to litigation. It also can be used as a colloquialism for allowing a dispute
to drop or as an alternative to violence. In recent years there has been
more discussion about taking a systems approach in order to offer
different kinds of options to people who are in conflict, and to foster
"appropriate" dispute resolution. That is, some cases and some
complaints in fact ought to go to formal grievance or to court or to the
police or to a compliance officer or to a government IG. Other conflicts
could be settled by the parties if they had enough support and coaching,
and yet other cases need mediation or arbitration. Thus "alternative"
dispute resolution usually means a method that is not the courts.
"Appropriate" dispute resolution considers all the possible responsible
options for conflict resolution that are relevant for a given issue.
ADR can increasingly be conducted online, which is known
as online dispute resolution (ODR, which is mostly a buzzword and an
attempt to create a distinctive product). It should be noted, however, that
ODR services can be provided by government entities, and as such may
form part of the litigation process. Moreover, they can be provided on a
global scale, where no effective domestic remedies are available to
disputing parties, as in the case of the UDRP and domain name disputes.
In this respect, ODR might not satisfy the "alternative" element of ADR.
BENEFITS
ADR has been increasingly used internationally, both alongside and
integrated formally into legal systems, in order to capitalize on the typical
advantages of ADR over litigation:
Suitability for multi-party disputes
Flexibility of procedure - the process is determined and controlled by
the parties to the dispute
Lower costs
Less complexity ("less is more")
Parties choice of neutral third party (and therefore expertise in area
of dispute) to direct negotiations/adjudicate
Likelihood and speed of settlements
Practical solutions tailored to parties interests and needs (not rights
and wants, as they may perceive them)
Durability of agreements
Confidentiality
The preservation of relationships and the preservation of reputations
Arbitration
The process of arbitration can start only if there exists a valid Arbitration
Agreement between the parties prior to the emergence of the dispute. As
per Section 7, such an agreement must be in writing. The contract,
regarding which the dispute exists, must either contain an arbitration
clause or must refer to a separate document signed by the parties
containing the arbitration agreement. The existence of an arbitration
agreement can also be inferred by written correspondence such as letters,
telex, or telegrams which provide a record of the agreement. An exchange
of statement of claim and defense in which existence of an arbitration
agreement is alleged by one party and not denied by other is also
considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and
if the other party does not cooperate, the party can approach the office of
Chief Justice for appointment of an arbitrator. There are only two grounds
upon which a party can challenge the appointment of an arbitrator
reasonable doubt in the impartiality of the arbitrator and the lack of proper
qualification of the arbitrator as required by the arbitration agreement. A
sole arbitrator or a panel of arbitrators so appointed constitutes the
Arbitration Tribunal. Except for some interim measures, there is very little
scope for judicial intervention in the arbitration process. The arbitration
tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to
challenge the jurisdiction of the arbitration tribunal, it can do so only
before the tribunal itself. If the tribunal rejects the request, there is little
the party can do except to approach a court after the tribunal makes an
award. Section 34 provides certain grounds upon which a party can appeal
to the principal civil court of original jurisdiction for setting aside the
award. The period for filing an appeal for setting aside an award is over,
or if such an appeal is rejected, the award is binding on the parties and is
considered as a decree of the court.
Conciliation
Conciliation is a less formal form of arbitration. This process does not
require an existence of any prior agreement. Any party can request the
other party to appoint a conciliator. One conciliator is preferred but two or
three are also allowed. In case of multiple conciliators, all must act jointly.
If a party rejects an offer to conciliate, there can be no conciliation. Parties
may submit statements to the conciliator describing the general nature of
the dispute and the points at issue. Each party sends a copy of the
statement to the other. The conciliator may request further details, may
ask to meet the parties, or communicate with the parties orally or in
writing. Parties may even submit suggestions for the settlement of the
dispute to the conciliator. When it appears to the conciliator that elements
of settlement exist, he may draw up the terms of settlement and send it to
the parties for their acceptance. If both the parties sign the settlement
document, it shall be final and binding on both. Note that in USA, this
Liability, massive construction, and antitrust cases. In a minitrial, each partypresents its case as in a regular trial, but with the notable di
fference that the case is "tried" by the parties themselves, andthe presentati
ons are dramatically abbreviated.
In a minitrial, lawyers and experts present a condensed version of the case
to top management of both parties. Often, aneutral adviser
sometimes an expert in the subject area
sits with management and conducts the hearing. After thesepresentations, t
op management representatives
by now more aware of the strengths and weaknesses of each side
try tonegotiate a resolution of the problem. If they are unable to do so, the
y often ask for the neutral adviser's best guess as to theprobable outcome o
f the case. They then resume negotiations.
The key to the success of this approach is the presence of both sides' top o
fficials and the exchange of information thattakes place during the minitria
l. Too often, prelitigation work has insulated top management from the tru
e strengths andweaknesses of their cases. Minitrial presentations allow them to see the dispute as it would appear to an o
utsider and setthe stage for a cooperative settlement.
EARLY-NEUTRAL EVALUATION
An early neutral evaluation (ENE) is used when one or both part
ies to a dispute seek the advice of an experienced individual,usually an att
orney, concerning the strength of their cases. An objective evaluation by a
knowledgeable outsider cansometimes move parties away from unrealistic
positions, or at least provide them with more insight into their cases' stren
gthsand weaknesses. Of course, the success of this technique depends upo
n the parties' faith in the fairness and objectivity ofthe neutral thirdparty, and their willingness to compromise.
SUMMARY JURY TRIAL
Summary jury trials have been used primarily in the federal courts, where they provide parties with the opportunity t
o "try"their cases in an abbreviated fashion before a group of jurors, who t
hen deliberate and render an Advisory Opinion.
Like an early neutral evaluation, an advisory opinion from a su
mmary jury trial can help the parties assess the strengths andweaknesses o
f their cases and sometimes can facilitate the settlement of the dispute. An
other advantage of the summaryjury trial, which it has in common with th
e minitrial, is that it can be scheduled much sooner than a trial. When earl
yevaluations help the parties settle their cases, the parties typically avoid
much of the delay, expense, and anxiety thatoccurs in litigation.
The Law on Alternative Dispute Resolution: Private Justice in the
Philippines
Caveat: This is merely a summary of the book. You should read the book
at least once. This reviewer does not contain some essential definitions
because such are already defined in the law, RA 9285. No copyright
infringement is intended.
CHAPTER 1
The Laws delay: An introduction
History of ADR
Pre-Hispanic era-Jose Rizal noted the custom of the inhabitants
of the Philippines before the Spaniards reached its shores. They submitted
the decision of their elders, which they respected and carried out.
According to Jose Rizal, it was better that the ..Judges were persons of
the locality, forming a jury, elected by both parties who knew the case, the
customs and usages better than the gowned judge from the outside to
make his fortune, to judge the case he does not know and who does not
know the usage customs and language of the locality. It is easy to
surmise that our ancestors practiced ADR.
Tesco v. Vera-While it is true that the CIAC shall have original and
exclusive jurisdiction over disputes connected with contracts entered
into by parties involved in the construction industry in the Philippines,
the parties must first agree to do so before the CIAC can acquire
jurisdiction to arbitrate the matter.
3) Consumer Arbitration
Consumer Act of the Philippines (RA no. 7394) provides for the
creation of a consumer arbitration program to handle consumer
complaints. They have original and exclusive jurisdiction to mediate,
conciliate hear and adjudicate all consumer complaints xxx.
4) Matrimonial Mediation
Disputes between couples that are civil in nature may be the subject of
court-referred mediation, subject to the limitations of Art. 2035 of the
Civil Code.
The ff. disputes may not be compromised:
a) civil status of persons
b) validity of marriage or legal separation
c) any ground for legal separation
d) future support
e) future legitime
f) jurisdiction of the courts.
5) Corporate Arbitration
Corporation Code provides for the mechanism to resolve
corporate disputes. The SEC can exercise its power to arbitrate the
dispute upon written petition by any stockholder. (read more about
powers of the SEC)
6) Partnership Arbitration
The CC states that is beyond the authority of one or more but less than
all the partners to enter into a compromise or submit to arbitration a
partnership claim or liability. When it comes to ADR, unanimous
consent of partners is needed to carry out the plant to resolve
partnership disputes without a court trial.
7) Administrative Arbitration
Doctrine of Non-exhaustion of administrative remedies
8) Environmental Mediation
9) Executive Arbitration
10) Foreign Arbitration
11) Banking Arbitration
12) Mining Arbitration
13) Maritime Arbitration
14) Insurance Arbitration
15) IP Arbitration
16) Securities Arbitration
Six-Step Structure of a face-to-face mediation meeting
(I-H-I-M-I-S)
1) Introduction and agreeing of ground rules
2) Hearing what has happened or summarizing the facts
3) Identifying the issues
4) Mutual understanding and communicating feelings
5) Ideal storming of a win/win solution
6) Signing of voluntary agreement.
Causes of Court Delays (Justice Myrna Dimaranan Vidal)
1) the misuse of the due process and the abuse of legal
technicalities;
2) the intervention of political pressure in court cases;
3) the sheer weight of court litigations arising from development
and growth;
4) the dilatory tactics of lawyers;
5) neglect and laxity on the part of judges; and
6) Court vacancies.
Definition of Terms:
Alternative Dispute Resolution
It is defined as 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
Process Consultation
This is used if there is a long-standing relationship between the
parties and they encounter problems in resolving the disputes. Process
consultants act as counselors who focus on the process of negotiation,
assisting the parties in enhancing or restoring communication lines.
Court-Annexed Mediation
Means any mediation process conducted under the auspices of
the court, after such court has acquired jurisdiction of the dispute
Court-Referred Mediation
Means mediation ordered by a court to be conducted in
accordance with the Agreement of the Parties when as action is
prematurely commenced in violation of such agreement.
Chapter V
The Mitigation of Litigation:
A Cornucopia of Non-litigative Processes
Motivating Factors that contribute to the rise in demand ADR
processes:
1) Avoidance of high expense of litigation
2) Fear of lawsuit will result in an outcome far more adverse than
reasonably anticipated
3) Need to return workers involved in the law suit to more
productive activities
4) Wish to preserve and re-establish the business or inter-personal
relationship that was temporarily disturbed by the conflict.
Med/Arb (Already defined in this reviewer) The parties go through a
phase where parties in crafting a compromise agreement only if this goes
down in flames, the mediator will change colors-may not render a binding
award as an arbitrator pursuant to the agreement. However, Sec. 20 of RA
876 states, No Arbitrator shall act as a mediator in any proceedings in
which he is acting as an arbitrator;xxx is subject to strict interpretation.
Facilitation is a less active form of mediation. The neutral third party or
facilitator acts as a moderator in large meetings, acting as traffic police
officer directing the flow of traffic in the meeting and seeing to it that
everyone says his piece during the forum.
Mini-trials are not a trial but a rational and voluntary manner in
structuring a settlement of disputes between two big companies that are at
loggerheads over sticky business issues. This is otherwise known as renta-judge.
Besides, mini-trial is a voluntary, confidential and non-binding procedure
that affects a speedy, cost-effective resolution of corporate conflict.
Lawyers present summaries of their cases to chief executives or other key
decision-makers representing both clients. (Linda Singer)
Mini-trial contract This is signed by the parties that contain provisions
governing the conduct of discovery, how hearing will be handled and a
few more important stipulations.
Class action administration is a sensible approach at dispute resolution
is to have an administrative agency that is in charge of maintaining and
tracking statistical data as well as overseeing restitution payments,
appointed by the court or chosen by the parties design a set of claims
procedures and forms that will be sent out to all the claimants.
Voluntary settlement conference is where the neutral party, unlike
mediation, is allowed to express his opinions and views about the case and
will be obligated to formulate an advisory opinion to be submitted to the
parties for review and approval.
7) Low-balling
Agreeing to the offer made by the other part and then start chipping
away at the terms of the original offer until the offer has been severely
altered
8) The Bait and switch
9) Advertising one product to bring people inside the store and finding
excuses to explain the unavailability of the advertised product then
quickly suggest that a different product be bought instead.
10) Outrageous behavior
Exhibiting socially unacceptable demeanor to rattle the other party
11) Written work
Presenting adhesion contracts to discourage question about the deal
12) The vise
Applying verbal pressure to force the other party To do better than
what is being offered and to gain concessions.
13) Trade off
Splitting the difference and seeking the midpoint
14) Nibble
Waiting for the major terms of the deal to be settled then asking for
the minor concessions to be included in the deal
15) Funny Money
Making mathematical calculations and dividing the payments over a
period of time to convey the impression that the other party is getting a
good deal.
Two major types of unassisted negotiations:
1) Combative Negotiator- who will emphasize only his own gains at
the expense of the other and employ hard line tactics, such as
exaggerating claims or even threatening to abandon the discussion if
he does not get his way.
2) Conciliatory negotiator-who will assume the role of a problem
solver rather than an intimidator.
Class of negotiations
1) Position-based negotiations often involve hard-ball methods because
it is premised on the presumed superiority of ones position.
2) Interest-based negotiation is much more candid and amiable
technique that involves the willing disclosure of all germane
information to the other party so as to explore all avenues of
satisfying the needs and interests of the other side of the least
possible cost and at the shortest possible time.
Leonard Koren and Peter Goodmans dead-lock breaking techniques
(1991)
1) Be positive and dont be put off by the good word no
2) Agree on easier terms first and skip over the points that are bogging
you down and come back to them late
3) Emphasize shared goals, get back to common ground and start
building up again
4) Reduce complexity, break down complicated negotiations into pieces
and solve each piece one at a time
5) Brainstorm with your opponent to generate various alternatives
6) Fine tune your agreement so that there is something that both of you
can find acceptable
7) Passing written proposals back and forth for comment
8) Calling a time out when things get rough and not going your way.
EXHAUST ADR PROCESSES BEFORE LITIGATION.