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ADR Reviewer
Alternative Dispute Resolution Reviewer
Midterms.
APRIL 2, 2015YOURLADYLAWYER
ALTERNATIVE DISPUTE RESOLUTION
By. Atty. Gabriel Robeniol
Chapter 1: Introduction
Historical Rule:
Judicial and Legislative trends:
 Utilization of alternatie means and
methods implemented in or outside the court
trial system
Civil Code of the Philippines:
 30 August 1950
 Contains provisions of/or on
compromise arbitration.
 Encourages litigants to agree upon fair
compromise and authorize arbitration
19 June 1953
 Enactment of arbitration law
 Republic Act. 876
20 May 1965
 Convention on the recognition and
enforcement of foreign arbitration / arbitral
awards
Philippine law has acknowledged the
international arbitration as system of
setting commercial dispute.
UNCITRAL
 Model law which the Philippines
committed its adherence.
Judiciary Action
Response of Judiciary to the Problems of
Delay.
 Requirements of conducting pre-trial
conference
 Utilization on different modes of
discovery
 Proscription against forum shopping
The supreme court encourages the
use of arbitration through Philippine
Mediation Commission or through
Judicial Dispute Resolution (JDR)
Legislative Action:
 Special domestic legislation passed the
prescription of arbitration, mediation and
conciliation.
 G:
 Labor Code of the Philippines
 National Labor Relations Commissions
Concerning:
 Unfair Labor Practice
 Termination of Employment
 Conditions of Employment
 Damages arising from E – E
 Level Arbitration
Executive Branch Contribution:
 CIAC – Construction Industry Arbitration
Commission – Enacted during 4 Feb 1985
concerning constriction dispute
 23 August 1998 – rules of procedure
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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The Lawyer’s 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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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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 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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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

 Non – Party
 Secretary, stenographer, assistants
 Any persons who obtains information
 Continues even the mediator fialed to
act impartially
 Mediator may not be called to testify
Exceptions based on agreement, Nature of
Proceedings, Crime or Social Justice
 Contained in an agreement evidence by
a record authenticated by all parties to
agreement
 Made public or required by the courts to
make it public
 A threat or statement of plan to inflict
bodily injury
 Communication on attempt to commit a
crime
 Used to approve or disprove neglect,
abandonment or exploitation
 Used to sought or complaint against
misconduct
 Non party base agreement
Exceptions based on Public Policy
 Court proceeding involving a crime or
felony
 Avoid liability on contracts arising from
mediation
Limited use of External Evidence
 Only such portion of the communication
necessary for the application of the
exception can be admitted in evidence
Privileged Mediation
 Bound by the confidential privileged
 Exception
 Termination of mediation
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 Settlement was reached
 Permitted to be disclosed
Waiver of Confidentiality
 Expressed
 Implied
The Mediator
 OADR – list and freedom to select
mediators
Withdrawal Requirements
 The party requested
 Lacks qualifications, training and
experience
 Mediator’s impartiality is in question
 Violation of ethical standards
 Safety will be jeopardized
 Unable to provide effective services
 Conflict of interest
 Other instances
Duties and Functions of Mediationr
 Prior to Mediation
 Upgrade professional competencies
 Reasonable inquiry
 During the Mediation
 Confidential
 Consent and self determination
 Promotion of respect and control of
abuse and process
Mediator’s Cost and Fees
 Ad Hoc – free to make their own
arrangement as to the mediation of cost and
fees
Mediated Settlement Agreement
 Compromise Agreement
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 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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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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 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

Functions
 Take necessary measurements
 Decide on the challenge
 Consider the qualifications
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
 Sole arbiter – shall be appointed by the
parties
 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
Procedure for the challenge in ICA
 Default procedure
 Sending of written agreement 15 days
after becoming aware of the constitution of
arbitral tribunal
 The parties may request the appointing
authority within 30 days to challenge
tribunals
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Procedure incase the Arbitrator fails to act in
ICA
 Mandates terminates
 Withdraws
 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
 Lack of jurisdiction
 Excess of jurisdiction
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,
compel
Legal Representation in ICA
 A person may be represented by any
person of his choice
Determination of Rules of Procedure
 Statement of claims
 Statement of Defence
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 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