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What is the Nature of the Alternative Dispute Resolution1

What is the Nature of the Alternative Dispute Resolution1

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Published by cuttyrish
adr, philippines, law, notes, questions
adr, philippines, law, notes, questions

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Published by: cuttyrish on Jul 15, 2013
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1) What is the nature of the Alternative Dispute Resolution? What is it’s importance?

It is consensual - one cannot be compelled to submit to arbitration, but one they have agreed, they’re bound by it. ADR System is important because it provides an alternative and efficient tool in the resolution of cases before they even reach the courts. It promotes party autonomy which is the freedom of the parties to make their own arrangements to resolve their disputes. It encourages creativity between/among parties. 2) What are the benefits of undergoing ADR? ADR:

party autonomy on how parties settle their disputes.

As its distinct advantage, arbitration is the only method in which the litigants can choose their own judges and craft the rules to be used in deciding their disputes. It is akin to “privatizing” the courts, a concept that should endear arbitration to private business. Because arbitrators are chosen on a case-to-case basis and, therefore, have no other disputes to attend to, they are able to hasten the procedures and the judgment. Equally important, the judgment is credible, because it is rendered by “judges” implicitly trusted by the litigants who chose them.


• • • • • •

Parties can be creative in settling their disputes Flexibility of proceedings Confidentiality of proceedings Reduced cost and time in the resolution of conflict stress because it will avoid long litigation Preservation of relationship


There is no guaranteed resolution. With the exception of arbitration, alternative dispute resolution processes do not always lead to a resolution. That means it is possible that you could invest the time and

The Supreme Court that where the parties have agreed to submit their dispute to arbitration. Future legitime. f. h. While the option of making the proceeding confidential addresses some of this concern. The Special ADR Rules further directs the courts not to whimsically or jealously refuse to refer parties to arbitration. • Arbitration decisions are final. g. With few exceptions. courts shall refer the parties to arbitration pursuant to the ADR Act of 2004. the decision of a neutral arbitrator cannot be appealed.” Are there exceptions t • 3) Limitations. Decisions of a court. d. and i. instead The Special Rules of Court on Alternative Dispute Resolution or the Special ADR Rules which became effective on October 30. was issued by the Supreme Court to govern identified cases related to ADR. bearing in mind that such arbitration agreement is the law between the parties and that they are expected to abide by it in good faith. Any ground for legal separation. Participation could be perceived as weakness. 2009. The . 9285. e. c. 442 (The Labor Code of the Philippines. usually can be appealed to a higher court. Criminal liability. it shall not apply in the resolution or settlement of the following: a. and its Implementing Rules and Regulations). 4) How will it affect the power of the Supreme Court in adopting it’s own ADR System. No. It will not affect its power to deal on such cases. Disputes referred to court-annexed mediation.A. Those which by law cannot be compromised. Yes. on the other hand. The validity of marriage. some parties still want to go to court “just on principle. According to Section 6 of R. b. Labor disputes covered by Presidential Decree No. The jurisdiction of courts. The civil status of persons.money in trying to resolve the dispute out-of-court and still end up having to go to court. as amended.

(g) one or more of the arbitrators are not Philippine nationals. To enforce them. (b) the court is in a better position to resolve the dispute subject of arbitration. 4) What proceedings are considered in ADR? The most common forms of ADR are: Arbitration. selected by the disputing parties. (e) the place of arbitration is in a foreign country. or (h) one or more of the arbitrators are alleged not to possess the required qualification under the arbitration agreement or law ADR methods are encouraged by the Philippine Supreme Court and have been held valid and constitutional in our jurisdiction even before laws were enacted to regulate these procedures The Supreme Court encourages the use of arbitration. (d) the arbitration proceeding has not commenced. the Supreme Court almost always upholds the validity of agreements to arbitrate as well as the finality of arbitral awards. or rules promulgated pursuant to relevant legislation and rules and regulations. there is in general a need for judicial confirmation. Conciliation. Since it encourages arbitration. Arbitration is the voluntary dispute resolution process in which one or more arbitrators. . appointed in accordance with the agreement of the parties. because it helps to unclog the dockets of the judiciary and to improve its efficiency. Mini-Trial and Good Offices. (c) the referral would result in multiplicity of suits. Mediation. (f ) one or more of the issues are legal and one or more of the arbitrators are not lawyers. resolve a dispute by rendering an award. But the process is fairly simple and the “execution” of arbitral judgments is almost always granted.courts may not refuse to refer a dispute to arbitration even if (a) the referral tends to oust a court of its jurisdiction. and assists the parties in reaching a voluntary agreement regarding a dispute. facilitates communication and negotiation. Early Neutral Evaluation. Mediation is a voluntary process in which a mediator.

under the court-annexed mediation. the datus used to settle disputes of their constituents. . Mini-Trial is a structured dispute resolution method in which the merits of a case are argued before a panel composed of senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement. It is plainly administrative support.Conciliation is a process whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. In these early days. The conciliator does not have the authority to impose upon the parties a solution to the dispute. ADR methods in this jurisdiction can be traced as far back as the barangay and other forms of village governments before the Spaniards came in 1521.). under the Katarungang Pambarangay Law and even in cases already filed in court. Early Neutral Evaluation is an ADR process wherein parties and their lawyers are brought together early in pre-trial phase to present summaries of their cases and receive a non-binding assessment by an experienced neutral person with expertise in the subject in the substance of the dispute. 5) Is the ADR a new concept in the Philippine Setting? No. and their decisions were invariably accepted as having authority and finality. It is merely the provision of venue only and not the consultation itself. ADR is already being practiced in labor proceedings under the Labor Code (NLRC. Labor Relations cases. Good Offices are offices that essentially provide logistical support to parties to come up with consultation. etc.

Title XIV of the 1950 Civil Code of the Philippines on compromises and arbitrations.A. 876 – AN ACT TO AUTHORIZE THE MAKING OF ARBITRATION AND SUBMISSION AGREEMENTS.A. AND FOR OTHER PURPOSES UNCITRAL Law – the Model Law is designed to assist States in reforming and modernizing their laws on arbitral procedure to take into • • • . it is inevitable that parties to a contract are of different nationalities and have their places of business in different countries. The enactment of R.A. 876 officially adopted the view that arbitration is a speedy and effective method of settling disputes Concomitant to the increasing growth of global commerce as well as to the advances in the means of communication and transportation is he rising number of commercial transactions which unavoidably give rise to commercial disputes. 876 or Philippine Arbitration Law of 1953 was passed.O. language and customs than to submit to the laws and procedures of the other party’s country.The need for a law to regulate arbitration in general was acknowledged when Republic Act No. As a result of the rapid globalization of the world economy. No. AND FOR OTHER PURPOSES E.A. TO PROVIDE FOR THE APPOINTMENT OF ARBITRATORS AND THE PROCEDURE FOR ARBITRATION IN CIVIL CONTROVERSIES. R. 876 was adopted to supplement the provisions of chapters one and two. each party will prefer to resolve the dispute in his own country where he is familiar with the laws. Necessarily. No. No. 1008 – CREATING AN ARBITRATION MACHINERY IN THE CONSTRUCTION INDUSTRY OF THE PHILIPPINES R. The reluctance of parties to have matters resolved in a foreign court gave rise to Alternative Dispute Resolution methods 6) What laws govern the ADR practice in the Philippines? • R. No. 9285 – AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTM IN THE PHILIPPINES AND TO ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION.

the State shall provide means for the use of ADR as an effective tool and alternative procedure for the resolution of appropriate cases. Towards this end. Reason for the enactment of the law • clogged court dockets. In arbitration proceedings.account the particular features and needs of international commercial arbitration. What is the protection given to the parties in the ADR process? • • In mediation proceedings. As embodied in section 2 of Republic Act No. expensive litigation fees. the State shall encourage and actively promote the use of ADR as an important means to achieve speedy and impartial justice and declog court dockets. • . To achieve this. 9285 or the Alternative Dispute Resolution Act of 20042 enacted by the Philippine Congress. the information obtained shall be privileged and confidential. it is the declared policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes. the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of arbitral award. slow-paced court proceedings and the rigid and adversarial system of courts have encouraged parties to disputes to resort to several forms of alternative dispute resolution (ADR) procedures. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of systems of the world. evidence and the arbitral awards are confidential and shall not be published except with the consent of the parties or for limited purpose of disclosing to the court relevant documents in cases where resort to the court is allowed. the records. It covers all stages of the arbitral process from the arbitration agreement.

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