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

The Lawyers 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 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
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

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
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
Mediators 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
Mediators Cost and Fees
Ad Hoc free to make their own arrangement as
to the mediation of cost and fees
Mediated Settlement Agreement
Compromise Agreement
Successful Mediation
Roles of counsel in Mediation
Collaborative
Encourage
Assist
Confer
Chapter 4: Arbitration in General
Arbitration
Process which one or more arbitrators appointed
in accordance with the agreement of the parties
It is the arbiter that decides the dispute and
renders an arbitral award to conclude in arbitral
proceedings
Kinds of Arbitration
 Voluntary
Reference of a dispute to an impartial body
Members are chosen by the parties themselves
Compulsary arbitration
Settlement of labor dispute by the government
agency which has the authority to investigate
Domestic
International
Foreign
Same concept lang naman to nung nasa chapter two
na foreign domestic at international dapat alam nyo
nay un.
Commercial Arbitration matters arising from all
relationship of commercial in nature

Policy on Arbitration
Speedy and inexpensive methods
Arbitrator
Person appointed to render an award
May use his own discretion in the performance
of his function
Arbitration agreement
Agreement by the parties
In respect of legal relationship
Essential elements
Consent of the parties freely given
Cause of consideration
Lawful object
Two modes in submitting dispute
 Agreement to submit in arbitration
Submission agreement
Arbitration Agreement
Shall be in writing and subscribed by the parties
to be charged
May be included in arbitration clause or
compromise
Arbitration Clause
Must be liberally construed consistent with the
policy of encouraging alternative dispute
resolution method
Doctrine of Separability
Arbitration agreement is independent of the
main contact even if it contained in Arbitration
clause
Due process in Arbitral proceedings
Principles of administrative due process equally
apply to arbitral proceedings
Judicial Review and Court intervention
Proper RTC
Review Court of Appeals Rule 43 ROC
Certiorari proper court Rule 65 ROC
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 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
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
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
Default of the parties
Amendment of claims or defences
Hearings (1) court assistance in taking evidence
(2) subpoena (3) expert
Conclusion / closure
Requisites for an Arbitral Award to be Final
Rendition of the arbitral award
Hearing on the qualification
Expiration of the periods
Cost in ICA
Fees on arbitral tribunal
Travel
Cost of expert advice
Travel and other expenses of witness
Cost for legal representation
Fees and expenses of appointing authority
Correction and Interpretation of ICA award
Quantification of the cause and the
determination of the party liable therefore or the
division between the parties
Correction of typographical and similar errors
initiated by a parties
Interpretation of the awards
Correction of typographical error initiated by the
Arbitral Tribunal
Additional award
Setting Aside an ICA AWARD

Requirements
Default in the arbitration agreement
Violation of due process
Lack or excess of jurisdiction on the part of the
arbitral award
Violation of the arbitration agreement
Venue:
RTC

Requirements
Place of arbitration
Assessed, reviewed or enjoinment is located
Residence ir place of business
NCR
Time for filing the petition for Setting Aside
3 mos
90 days
Recognition and Enforcement of Foreign
Arbitral Awards

Recognition
Means by which a Philippine courts give legal
acknowledgment to a foreign arbitral award
Confirmation
Judicial affirmation of a domestic arbitral award
Enforcement
Execution and implementation