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ADR NOTES 2018 FORMS of ADR IN THE PHILIPPINES

ADR MECHANISM:
Arbitration, CAM & JDR R.A 9285: Alternative Dispute Resolution (2004)
 History & concept
 Rule 18 & 118 Pre-Trial
 Continuous Trial in Criminal Cases E.O. 1008: Construction Industry Arbitration Law (1985)

Topics:
1. Importance of ADR in the Philippine Judicial Labor Code [Collective Bargaining Agreements & Grievance
System Machinery]
2. FORMS of ADR in the Philippines
3. Rule 18 & 118, Rules of Court
4. Effectiveness & Success Rates in Current R.A. 7160: Local Government Code (1991) [Katarungang
Sites: Data & Statistics Pambarangay]
5. CAM & JDR: Component Units of ADR
6. CAM & JDR: Benefits; Effective Tools:
a. Decongest Court Dockets R.A. 6734: Organic Act of the ARMM [Tribal Council]
b. Reduce Unnecessary Delay
c. Humanize the Judiciary
d. Enhance Access to Justice P.D. 1083: Code of Muslim Personal Laws of the Philippines
7. Philippine Mediation Center Office Agama Arbitration Council (1997)
8. Continuous Trial of Criminal Cases [Divorce/Talaq]

IMPORTANCE OF ADR IN THE PHILIPPINE R.A. 8731: The Indigenous Peoples Rights Act [Ancestral
JUDICIAL SYSTEM Domains]
 Empower the parties to resolve their own
disputes & give practical effect to the State
Policy expressed in the Alternative Dispute Civil Code/Family Code
[Article 151 Family Council]
Resolution Act of 2004 (RA 9285):
o “ … to actively promote party autonomy
in the resolution of disputes or the Model Law on International Commmercial Arbitration
freedom of the parties to make their own [UN Commission on International Trade Law: UNCITRAL)
arrangement to resolve disputes. (June 21, 1985)
o Towards this end, the State shall
encourage & actively promote the use of
Continuous Trial of Criminal Cases
ADR as an important means to achieve
speedy & impartial justice & de-clog
court dockets.” Recognition of ADR in the Civil Code
o Put an end to pending litigation
 Title XIV. – COMPROMISES AND
through a compromise agreement of
ARBITRATIONS
the parties
o CHAPTER 1. – COMPROMISES
 ADMINISTRATIVE INNOVATION  ART. 2028 – A COMPROMISE is a
o Attempts to settle cases based on legal contract whereby the parties, by
rights & obligations of parties may not making reciprocal concessions, avoid
address the real interests & needs of a litigation or put an end to one already
the disputants commenced.
 ART. 2029 – The court shall endeavor
to persuade the litigants in a civil case
to agree upon some fair compromise
o CHAPTER 2 – ARBITRATIONS
 ART. 2042 – The same persons who
may enter into. A compromise may
submit their controversies to one or
more arbitrators for decisions

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 ART. 2043 – The provisions of the  Commercial Arbitration:
preceding Chapter upon compromises o PDRCI: Philippine Dispute Resolution
shall be applicable to arbitrations Center Inc.
 ART. 2044 – Any stipulation that the o PIArb: Philippine Institute of Arbitrators
arbitrators’ award or decision shall be  3 STAGES OF DIVERSION
final, is valid, without prejudice to o Court Annexed Mediation (CAM) – CAM
Articles 2038, 2039, and 2040. on Wheels [Mobile Court Annexed
Mediation (MCAM)]
RULES OF COURT o Judicial Dispute Resolution (JDR)
 Rule 18 – Pre-trial o Appellate Court Mediation (ACM)
o Sec. 2 Nature & purpose – The pre-trial is
mandatory. The Court shall consider: Court Annexed Mediation (CAM)
 A. the possibility of an amicable  MEDIATION is a process of settling disputes
settlement or of a submission to with the assistance of an acceptable,
alternative modes of dispute impartial & neutral third party called a
resolutions mediator
o Despite Rule 18, SC observed that most  Mediator assists parties to:
judges go through the function of o Identify issues
exploring settlement PERFUNCTORILY o Develop proposals to resolve their
for various reasons including fear of being disputes
disqualified if he goes through the process  Once the parties have arrived at a mutually
more intensively acceptable arrangement, the agreement
 Small Claims Court: becomes the basis for the court’s decision on
o Preliminary Conference the case
o Mediator v. Arbitrator  Salient Points:
 NOW… o Self-Determination
o Recognition of ADR in the o Impartiality & neutrality
 Rules of Court:  Conflict of Interest
 Amended Rules on Civil Procedure  Competence
 Rules 22 & 24 o Confidentiality
o Face to Face/Alternate Trial  Justice Reform Initiatives (JURIS) Project
 Justice Sector Coordinating Council 2003-2008
(SC, DOJ, DILG) o Its intention is to restore the importance
 “Continuous Trial of Criminal Cases of amicable settlement of cases and
install innovative procedures that will
ARBITRATION remove such apprehension
 RA 876: THE ARBITRATION LAW Judicial Dispute Resolution (JDR)
o Section 2. Persons and matters subject  Another innovation in the Philippine Court
to arbitration. - Two or more persons or System
parties may submit to the arbitration of  When CAM in civil cases fail, Civil cases are
one or more arbitrators any controversy brought to the JDR judge who acts as:
existing between them at the time of the o Conciliator
submission and which may be the o Mediator
subject of an action, or the parties to any o Neutral Evaluator
contract may in such contract agree to  Judge will try to mediate the case
settle by arbitration a controversy  PERIODS:
thereafter arising between them. Such o 1st Level Courts: 30 days
submission or contract shall be valid, o 2nd Level Courts: 60 days
enforceable and irrevocable, save upon  From Referral
such grounds as exist at law for the  Monitoring Required
revocation of any contract. Xxx  If judge’s intervention succeeds, case is
 Current Issue: concluded with a judgment base on a
o “Philippines prevails over China in the compromise
South China Sea or now called the West  If dispute is still unresolved, case is referred
Philippine Sea.” to another judge “trial judge” for trial

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 During trial, at the insistence of any party, o There are 704 accredited CAM
Mid-Trial JDR may be mediators, 102 ACM mediators and 731
 JDR GUIDELINE JDR Judges
o A.M No. 04-1-12-SC-PHILJA o The PMC Units have successfully
o A.M. No. 11-1-6-SC-PHILJA (Jan. 11, mediated
2011)  166,988 cases out of 440,909
referred cases for CAM with a
CAM & JDR: Benefits success rate of 63%;
Effective Tools  804 settled cases out of 5,071
1. Decongest Court Dockets referred cases for ACM with a
2. Reduce Unnecessary Delay success rate of 34%;
3. Humanize the Judiciary  12,505 settled cases out of 55,680
4. Enhance Access to Justice referred cases for JDR with a
success rate 39%; and
 10,002 settled cases through
INTEREST-BASED RIGHTS-BASED MCAM with a success rate of -4%

DISPUTE LITIGATION JDR JUDGE:


RESOLUTION  No distinction between 1st and 2nd Level Court
1. PRODUCT – 1. Judgment is Judges
compromise imposed  JDR JURISDICTION & JUDGE must concur
agreement
(facilitated) HIGHLIGHTS:
2. FOCUS – person 2. Act; punishment  Focuses on interests rather than Position
3. OUTLOOK – 3. Backward looking  2 JUDGE SYSTEM: JDR Judge & Trial Judge
future; towards to past events  Skills Based
reconciliation  JDR Jurisdiction & Judge
4. PROCESS – 4. Rigid; Formal  Referral to CAM prerequisites in civil cases
informal (Documented) (to the conduct of JDR proceedings)
(confidential),  Confidentiality
flexible  Re-raffle
5. RESULT – WIN- 5. WIN-LOSE  JDR Process must be observed
WIN
The JDR Process
Philippine Mediation Center Office (PMCO) Stages of JDR:
 Rationally establishing & managing effective 1) DELIVERING AN OPENING STATEMENT
& efficient PMC units (& staff) nationwide 2) STATEMENT OF THE PARTIES
 Engaging qualified, performing, & highly- 3) NEGOTIATION
motivated mediators and PMC staff a. Applying Active Listening Skills
 Enabling the parties themselves to resolve b. Reflecting, reframing, restating,
the disputes brought to the courts, resulting clarifying, paraphrasing positions/rights
in the decongestion of court dockets, to interests
fostering party autonomy, & enhancing c. BATNA, WATNA, MLATNA, ZOPA
access to justice d. Causing Techniques & Impasse
 Developing ADR programs & initiatives that 4) SETTLEMENT/CLOSURE
are both relevant and sustainable 5) RETENTION OR RE-RAFFLING
 Generating & utilizing to the optimum ADR POSITIONS INTEREST
resources (research & policy materials funds R- Rights R- Relationship
& other means of ----- O- Obligations E- Emotions, Expectations
 PMCO SCORECARD (As of March, 2014)
o The PMCO has 115 CAM units, 1 MCAM V- Violations V- Values
unit, 18 JDR Units and 3 ACM units, I- Injuries I- Interests
manned by 193 Mediation Staff. D-Damages D- Data
S- Structures

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REVISED GUIDELINES FOR CONTINUOUS v. Criminal negligence under Title 14, RPC,
TRIAL OF CRIMINAL CASES where the liability may be civil in nature;
and vi. Intellectual property rights cases
III. Procedure; 9. Mediation. where the liability may be civil in nature.
a. The fallowing cases shall be referred to b. The referral of the case for mediation to the
mediation on the civil liability unless a Philippine Mediation Center (PMC) Unit shall
settlement is reached earlier in the pre-trial/ be made only after the conduct of the
preliminary conference: arraignment and the pre-trial/ preliminary
i. crimes where payment may prevent conference.
criminal prosecution or may extinguish The court shall serve the Order of Referral to
criminal liability, such as violations of: the PMC Unit immediately after the
1. B.P. Blg. 22; arraignment and the pre-trail/ preliminary
2. SSS Law (R.A. No. 1161, as a1nended conference.
by R.A No. 8282); and The mediation shall be terminated within a
3. PAG-IBIG Law (R.A. No. 9679). non-extendible period of thirty (30) calendar
ii. Crimes against property under Title 10 of days from the date of referral by the court to
the Revised Penal Code (RPC), where the the PMC Unit. After the lapse of the mediation
obligation may be civil in nature, such as: period or if mediation fails, trial shall proceed.
1. Theft under Art. 308, RPC, cognizable Except those cases mentioned above,
by the first level courts; criminal cases subject to the Rule on
2. Estafa under Art. 315(1 ), RPC, except Summary Procedure shall not be referred to
estafa under Art. 315 (2) and (3); mediation
3. Other forms of swindling under Art.
316, RPC;  No JDR IN CRIMINAL CASES
4. Swindling of a minor under Art. 317,
RPC; Not Subject to Alternative Dispute Resolution:
5. Other deceits under Art. 318, RPC;  B) the civil status of persons
and  C) the validity of a marriage
6. Malicious mischief under Art. 327,  D) Any ground for legal separation
RPC.  E) the jurisdiction of courts
iii. Crimes against honor under Title 13, RPC,  F) future legitime
where the liability may be civil in nature,  G) criminal liability
such as:
 H) those which by law cannot be
1. Libel by means of writings or similar
compromised
means under Art. 355, RPC;
 VAWC
2. Threatening to publish and offer to
present such publication for a
CAN BE SUBJECT OF JUDICIAL DISPUTE
compensation under Art. 356, RPC;
RESOLUTION
3. Prohibited publication of acts ref erred
1) Custody of minor children
to in the course of official proceedings
2) Separation of property or
under Art. 357, RPC;
3) Support pendent lite
4. Grave Slander (Grave Oral
Defamation) of serious and insulting
nature under Art. 358, par. 1, RPC;
5. Simple Slander (Oral Defamation) - not
of a serious and insulting nature under
Art. 358, par. 2, RPC;
6. Grave Slander by Deed - of a serious
nature under Art. 359, par. 1, RP
7. Incriminating innocent person under
Art. 363, RPC;
8. Intriguing against honor under Art.
364, RPC;
iv. Libel under R.A. 10175 (Cybercrime
Prevention Act of 2012) where the liability
may be civil in nature;

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CONFLICT POSITIONS

WHAT IS CONFLICT Rights


(Latin) Obligations
Violations
Con (together) + Figere (to strike) = configure Injuries
(conflict-strike together) / conflictus (a contest or Damages
clash) = CONFLICT

ASPECTS OF CONFLICT SOURCES OF CONFLICT


Negative aspect Positive aspect
Time consuming Causes needed Non-Legal or Non-Rights Perspective
change (REVIDS)
Wastes resources Develops solutions
Affects health Awakens people into Relationship conflicts & Emotional conflicts
action  Personality Differences
Causes further harm Enhances the work  Past bad experiences
environment  Poor or miscommunication
Distorts information Opens up new  Biases
and behavior channels of  Negative, repetitive behavior
communication  Strong emotions
Develops ill feelings Relieves pent-up
and emotions feelings and emotions Value of conflicts
Induces destructive Moves parties to learn  Incompatible values and beliefs
thoughts and more about  What is right behavior
behavior themselves and other
Interest conflicts
STAGES  Underlying perceived
 Latent – basic conditions exist, but have not  Incompatible concerns, goals & needs
been recognized by the parties  4 areas to be addressed (Substantive,
 Perceived – basic conditions are recognized Procedural, Psychological, Contextual)
by one or both parties
 Emerging/Felt – internal tensions begin to Data conflicts
build conflict, though parties are still open  Insufficient data
 Manifest – conflicts is out in the open and  Different views on what is relevant
becomes obvious, both parties start to get  Misinformation
involved  Different interpretations
 Aftermath – Conflict stopped, new conditions  Different assessment procedures
established (leads either to new conflict)
Structural conflicts
 Poor role definitions
 Time constraints
 How a situation is set up
 Geographical/physical relationship
 Unequal power and authority
 Unequal control of resources

VALUES CONFLICTS
 Caused by perceived or actual
incompatible belief systems
 Values are beliefs that people use to give
meaning to their lives. Values explain
what is good/bad, just/unjust, or
right/wrong
 Values need not always cause
conflict. Conflicts arise when

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someone tries to impose a set of Accommodate Collaborate
values on someone else I lose, you win I win, you win

Importance of Relationship
Avoid Compromise Compete
o Lack of information What problem? We both I win, you
o Misinformation somehow win lose
o Different views on what is relevant and lose
o Different interpretations of data
o Different assessment procedures
o Different data collection procedures
Importance to Self
Caused by the way a situation is set up – may be
external to those involved in the dispute
o Limited resources
o Rules (ambiguous, contradictory) Take away points
o Lack of clear roles description o Conflict is a fact of life
o Structure of the organization o Conflicts affect harmonious human
o Geographic constraints relationship
o Decision-making processes o Conflicts happens because parties have
o Time (too little or too much) unmet substantive, procedural and
psychological needs, which are often
HOW PARTIES DEAL WITH CONFLICT “obscured” by data problems,
relationship issues and values
BASIC CONCEPTS OF CONFLICT differences
MANAGEMENT o We have various options available in
dealing with conflicts
Typologies of styles o We can choose our manner of response
and learn the skills to help manage
Fight or flight responses to conflict (Dana,1996) conflicts and resolve disputes effectively
– this model proposes that our instinctive
reactions are to fight back or to flee from the
conflict

Freeze – to become paralyzed

Flow (Cornelius & Faire, 1989) – requires that


you break out of your old instinctive reactions, the
reflexes we all have inherited from pre-human
ancestors

APPROACHES TO CONFLICT

5 Conflict styles
1. Competing – high assertiveness and low
cooperativeness
2. Accommodating – low assertiveness and
high cooperativeness
3. Avoiding – low assertiveness and
cooperativeness
4. Compromising – intermediate on
assertiveness and cooperativeness
5. Collaborating – high assertiveness and
cooperativeness

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