SAINT PAUL SCHOOL OF BUSINESS AND LAW

Palo, Leyte
PRELIMINARY EXAMINATION
PRACTICUM I: ADR
ATTY. LEO S. GIRON
Professor

The Vanishing of a Trial

It is a well-established fact that trial takes time in order for

the court to properly decide on the matter at hand, often times it
takes months or worst years. Imagine the stress that it would
bring for both parties, excluded the time and effort which
equates to loss of money, when in truth and in fact we can
decide for ourselves the outcome of the case, in trial most of
the times the parties are given time to be heard for it a
fundamental right vested by us by the constitution, but do we
have to wait? Considering that we have our god given intellect
do we have to wait for trial or do we have to go to court to settle
our conflict/disputes with others? Would it not be best if we
ourselves settle our differences? I say yes, and the court and
our legislators so concur, we do not have to have Solomons
knowledge in order for us to decide what is best; sometimes we
just have to take time and a lot of patience to listen to the other
party to understand what they want and what they have to say.
Most importantly, in litigation only one party wins and the other
left defeated, but does the winner really wins? If winning
creates another evident consequencean adversary of a
lifetime.

As the enactment of Republic Act. 9285 otherwise known

as the The Alternative Dispute Resolution Act of 2004 which
declares 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.
Toward the end, the State shall encourage and actively
promote the use of Alternative Dispute Resolution (ADR) as an
important means to achieve speedy and impartial justice and de
clog court dockets. As such, the State shall provide means for
the use of ADR as an efficient tool and an alternative procedure
for the resolution of appropriate cases. Likewise, the State shall
enlist active private sector participation in the settlement of
disputes through ADR. An evidence that our law making bodies
greatly recognize the adoption of ADR practice in the
Philippines and also that the Act shall be without prejudice to
the adoption by the Supreme Court of any ADR system, such
as mediation, conciliation, arbitration, or any combination
thereof as a means of achieving speedy and efficient means of
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resolving cases pending before all courts in the Philippines
which shall be governed by such rules as the Supreme Court
may approve from time to time. Thus the enactment of Republic
Act. 9285 is the evidence that our Legislator recognized and
acknowledged the need for strengthening and promoting
alternative resolution to settle disputes.

On January 11, 2011, the Philippine Supreme Court

approved new guidelines to expand the coverage
of court- annexed mediation (CAM) and judicial dispute
resolution (JDR) Guidelines. The Guidelines were
issued through Resolution A.M. No. 11-1-6-SC-PHILJA.
The Guidelines adopted the policy of diverting court cases
to CAM and JDR to put an end to pending litigation through
a compromise agreement of the parties and thereby help solve
the ever-pressing problem of court docket congestion. While
recognizing that criminal cases may not be compromised, this
policy strongly indicates that the ultimate objective of CAM and
JDR is to end all litigation, not merely its civil aspect. The
Guidelines are empowers the parties to resolve their own
disputes and give practical effect to the State policy in Rep. Act
No. 9285 (The ADR Act of 2004) to actively promote party
autonomy in the resolution of disputes or the freedom of the
parties to make their own arrangement to resolve disputes
(Sec. 2). The reference to RA 9285 is interesting because the
Act does not cover court-annexed mediation (Sec.
7). Moreover, the mandatory nature of CAM and JDR and the
restriction of the parties ability to choose their mediators makes
CAM and JDR somehow inconsistent with the idea that in an
alternative dispute resolution system, the parties have the
freedom to determine how their dispute should be resolved.
Another evident recognition of alternative dispute resolution in
Judicial Reform. However this paper would focus more on
Alternative Dispute Resolution and its advantages wherein the
parties has more freedom rather than the Court-Annexed
Mediation.

So what is alternative dispute resolution in another point

of view and how does it work? Washington, D.C. mediator
and arbitrator Linda R. Singer described ADR as ranging
somewhere between the polar alternatives of doing nothing or
of escalating conflict, being less formal and generally more
private than ritualized court battles, and permitting the
disputants to have more active participation in and more control
over the process of solving their own problems. In short, ADR
is characterized by flexibility, informality, and control by the
parties to a dispute.

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 The degree to which these characteristics are present in
the various ADR techniques depends in part on the influence
the third party has on the process and outcome. But all the
techniques share these goals: to allow voluntary participation
by the disputants in a fair process; to support the crafting of a
creative and mutually satisfactory resolution; to enhance the
parties relationships; and to enable the parties to maintain their
dignity i.e., to save face.

Alternative dispute resolution is distinguished from

traditional methods of dealing with conflicts i.e., court litigation
or administrative adjudication. The latter processes do normally
not involve shared decision-making. If at all, they only require
solicitation and consideration of public input before decisions
are made. However, the above mentioned objectives can in
part also be achieved by joining ADR techniques with traditional
procedures of problem-solving.

Advantages of Alternative Dispute resolution

Advantages include the fact that it usually takes far less

time to reach a final resolution than if the matter where to go to
trial. Usually (but not always), it costs significantly less money,
as well. Furthermore, in the case of arbitration the parties have
far more flexibility in choosing what rules will be applied to their
dispute (they can choose to apply relevant industry standards,
domestic law, the law of a foreign country, a unique set of rules
used by the arbitration service, or even religious law, in some
cases.).

The parties can also have their dispute arbitrated or

mediated by a person who is an expert in the relevant field. In
an ordinary trial involving complicated and technical issues that
are not understood by many people outside a relevant industry,
a great deal of time has to be spent educating the judge, just so
they can make an informed decision. This large time investment
often translates into a great deal of money being spent. Both
sides might have to call expert witnesses, who may charge very
large fees for their time. If an arbitrator has a background in the
relevant field, however, far less time needs to be spent on this,
and the parties can get to the actual issues of the case much
sooner.

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Disadvantages of alternative resolution

ADR is not always cheap, and can be as expensive as

court action. Not all forms of ADR are quick; in fact some forms
of ADR require a client pass through many stages before
adjudication. There can be too much informality, not popular
with sophisticated clients. Disadvantages the less powerful side
in a dispute, by assisting negotiation thereby produces a result
that reflects the imbalance of bargaining power. Unsuitable for
some types of claim, for example where there has been
intentional wrongdoing, or involves public law or a crime. Why
should a party who is right in law or has a very strong case
consider an ADR compromise.

In conclusion the fight for justice is never easy. It never

has been and never will be. It exacts a toll on our self, our
families, our friends, and especially our children. In the end the
price we pay is well worth holding on to our dignity. Why do we
have to gamble our dignity if we can preserve it by resorting to
alternative dispute resolution, when our dignity weighs more
than our pride. Save ourselves from litigation, and save our
time, effort and money in some other matters. The law sees it fit
for the application of ADR for it brings us a peaceful
environment, free from prying eyes, eavesdropping ears, and
ill taking mouth. In ADR we can vanish a trial, and preserve a
good name.

References:
http://www.lorman.com/newsletter/article.php?article_id=1155&
newsletter_id=248

http://www.pdrci.org/2011/09/18/the-revised-rules-on-court-
annexed-mediation-and-judicial-dispute-resolution/

http://www.pdrci.org/2011/11/20/part-2-the-revised-rules-on-
court-annexed- mediation-and-judicial-dispute-resolution/

http://www.peterjepson.com/law/Steven%20Dibley%20ADR.ht
m

Republic Act. 9285 otherwise known as the The Alternative

Dispute Resolution Act of 2004