Professional Documents
Culture Documents
Philippines
Problems of judicial delay according to Marcos (1967):
(Book Summary and Cases)
1) The misuse of the due process and the abuse of legal
by: Marian Jane Alumbro technicalities;
University of Cebu College of Law 2) The intervention of the political pressure in the court cases;
Based on the book of Jim Lopez 3) Sheer weight of the court litigations arising from development
and growth;
Caveat: This is merely a summary of the book. You should read the
book at least once. This reviewer does not contain some essential 4) Dilatory tactics of lawyers;
definitions because such are already defined in the law, RA 9285. No
copyright infringement is intended. 5) Neglect and laxity on the part of the judges.
The Law’s delay: An introduction 1) An efficient and mismanaged court system that fails to act
promptly on legal issues ;
History of ADR
2) The disorganized state of the court-connected agencies;
Pre-hispanic era-Jose Rizal noted the custom of the inhabitants of the
Philippines before the Spaniards reached its shores. They submitted 3) The lack of preparation on the part of the litigants and
the decision of their elders, which they respected and carried out. lawyers;
According to Jose Rizal, it was better that the “..Judges were persons 4) The trigger-happy mind frame of lawyers to engage in long-
of the locality, forming a jury, elected by both parties who knew the winded examinations of witnesses; and
case, the customs and usages better than the gowned judge from the
outside to make his fortune, to judge the case he does not know and 5) The lawyers propensity to elevate their cases to the appellate
who does not know the usage customs and language of the locality”. courts and needlessly filing petitions for mandamus,
It is easy to surmise that our ancestors practiced ADR. prohibition and certiorari for the purpose of reviewing the
interlocutory orders of the lower courts.
Hispanic Era-Discontented parties had to resort to going to the SC of
spain which was a 36-day trip. Procedure for civil action, akthough But a more serious factor behind the “law’s delay” in the Philippines
similar to the criminal cases, was definitely more costly and drawn- involves the billing practice of lawyers. (Billable hours, number of
out. The high cost and unwarranted delays ensured that only the court appearances) Delaying tactics to consume time.
Europeans and the rich merchants in the city and the wealthy
landowners in the rural areas could afford the prosecution of the civil The choice between a litigation and settlement is clear. He would
suit. rather cut through the chase and solve his disputes swiftly and move
on with his life.
AGAN v. PIATCO (GR> NO. 15501)-SC ordered all affected parties to The Nature of Conflict
comment made by one of the parties that PIATCO commences
arbitration proceedings by filing a request for arbitration with the Conflict- clash of divergence of opinions, values and interests and
secretariat of the Internation chamber of commerce, International emotions.
Court of arbitration. Several phases of the conflict process by Peter Condiffe (1995)
Private Justice-the concept is fairly recent development in the 1) Conflict starts when parties perceive their differences-they go
administration of justice. though feelings of anziety and frustration.
-Private “Courts” are managed by private organizations, called 2) Realization or expression of grievances and the assessment of
ADR providers to serve those who need to resolve most types of all angles in the conflict.
consumer, civil, corporate and commercial disputes.
-some parties get afflicted with AVOIDANCE SYNDROME
-Parties generally agree to enter the private court system for (disregarding the existence of the problem because of relative
one main reason: the public court system is too chaotic and unwieldly. powerlessness high risks and costs involved)
-“vigilante justice” 3) Parties choose their conflict resolution methods and select
-Judges, selected by the parties and are paid on an hourly or a their strategies to settle their disagreements.
per session basis, are for rent not for sale. They are paid for their time 4) Evaluation of outcomes and the analysis of all ramifications of
and their expertise, not their expected favors. full implementation of the chosen methods of conflict management.
CON: Creates a dual court system-one rich and one poor. No ADR aims to solve the conflict not win the lawsuit which is the aim of
means a perfect system, it offers enormous savings in time, effort, litigation.
anxiety, money in the long haul.
Conflict is a contest and a problem to solve (Bill Withers)
CHAPTER 2
Modes of Resolving Conflict (Blake and Moulton)
The litigation of conflict: A Confucian Confusion
1) Withdrawal-Avoidance behavior on one or both parties
Two fundamental reasons for failure of trial courts according to Ralph
Warner and Stephen Elias: 2) Smoothing-emphasis of common interest and yielding by one
or both parties.
1) Court Rules and Procedures are so complicated and inefficient
that lawyer fees and other costs end up being a bigger 3) Compromising-each side obtains a part of what it wants.
problem than the dispute itself.
4) Forcing-forcing the other to acquiesce.
2) Winner take-all sustem defies logic, encourages lying and
generally brings out the worst in all participants. 5) Problem solving-involves an agreement in which both sides
meet their objective and affective needs.
When a person wins through a lawsuit can compare it as a Pyrrhic “Alternative” comes from the word “alternate” which means
victory (pronounced /ˈpɪrɪk/) which is a victory with devastating cost substitute, spare tire, a second stringer, a fallback position.
to the victor; it carries the implication that another such will
ultimately cause defeat. Which is wrong because litigation should be the LAST option not ADR.
1) When you need to establish a legal precedent, such as the Cases that involve:
validity of the patent which your company holds; 1) Constitutional law issues
2) When you need to publicy prove the truth, such as when a 2) Anti-trust suits
customer’s complaint about the product quality or safety has
received wide attention in the media product’s good name; 3) Probate
3) When your company’s legal rights have been infringed and you 4) Adoption
stand a good chance of collecting substantial damages in
court; 5) Precedent-setting cases that involve punitive damages
4) When your opponent is unable and unwilling to participate in 6) Actions of equitable relief, and
ADR; and 7) nuisance
5) When serious crimes are involved in the dispute.
are beyond the scope of arbitration.
CHAPTER 3 ART. 2035 of the Civil Code
The Grand Misnomer: “Alternative” Dispute Resolution”
If related issues of the following are matters in controversy may not
Legal Basis of ADR: be capable of being referred to arbitration:
Many Filipinos readily overcome conflict through pragmatic means. 3) Bahala na (fatalism)
1) Identify the source of the problem Impede settlement and plays key roles in clogging the courts with
frivolous suits that are brought just to “Save face” or to give a
2) Applying the appropriate problem solving techniques: “lesson to the opposing party.
a. Creative visualization-examine the reasons for the But, positive aspects of Filipino culture that may tend to mitigate
problem the Filipino propensity to litigate disputes:
b. Brain-storming-come up with alternatives 1) Kamag-anak network (close family ties)
c. Automatic writing-ask inner self for reactions of those 2) Tulungan (mutual aid)
possibilities
3) Bigayan (give and take)
d. Mental Imaging-ask inner expert for advice in making
choices. 4) Palabra de Honor (Word of Honor)
Litigation is what many Filipino Lawyers do best. Students of law are 5) Bayanihan (cooperative endeavor)
trained to think like lawyers, but they are not prepared to deal with
they should do best: solve their client problems and resolve their 6) Hiya (shame of doing something wrong)
disputes with the least amount of time and expense. The key to 7) Utang na loob (recognition of a debt or obligation)
decongest the courts is that students should be trained to be sensitive
to their client’s wishes to settle their conflict or dispute swiftly and 8) Paggalang (respect or honor)
without expense to court trials.
9) Kompadre (godfather system)
Filipino Conflict Management System
10) Delikadesa (“Being proper”)
Filipino Values
The Katarungan Pambarangay was seen by legislators as a means to
1) Pakikiusap-request and decongest the courts’ dockets, by encouraging the settlement of
minor cases at the barangay level, which will in turn allow the courts
2) Pakikisama-Companionship to speed up the adjudication of already pending cases. This again
relates to the access-to-justice problem in the country.
To ensure that the goal is met, the Local Government Code makes KP Consumer Act of the Philippines (RA no. 7394) provides for the
mediation and conciliation a condition precedent to the filing of cases creation of a consumer arbitration program to handle
in court. 7 Though non-compliance does not result in jurisdictional consumer complaints. They have original and exclusive
defect thereby rendering the court proceedings void ab initio, such jurisdiction to mediate, conciliate hear and adjudicate all
failure, if seasonably raised, makes the case vulnerable to a motion to consumer complaints xxx.
dismiss on the ground of prematurity (Garces v. CA, 162 SCRA 504).
(TAKEN FROM AN ONLINE PRIMER OF THE KATARUNGAN 4) Matrimonial Mediation
PAMBARANGAY Published by the UP-College of Law) Disputes between couples that are civil in nature may be the
Types of Arbitration in the Philippines: subject of court-referred mediation, subject to the limitations
of Art. 2035 of the Civil Code.
1) Labor Arbitration
The ff. disputes may not be compromised:
The Labor Code of the Philippines makes arbitration
mandatory in cases involving the interpretation and a) civil status of persons
implementation of collective bargaining agreements (CBA) and b) validity of marriage or legal separation
the interpretation or enforcement of company personnel
policies. The original and exclusive jurisdiction of which falls c) any ground for legal separation
with the Voluntary Arbitrators. (Sanyo v. Canizares)
d) future support
2) Construction Arbitration
e) future legitime
The creation of the Construction Industry Arbitration
Commission (CIAC) ushered the birth of arbitration in the f) jurisdiction of the courts.
construction industry.(EO. 1008)
Mock-Jury trial
Combination of Alternative Dispute Resolution a “mock jury contract” sets forth all the provisions government
the dispute resolution process chosen by them, including how the
A particular alternative dispute resolution may be combined mock jury proceedings will be conducted.
with the other types of alternative dispute resolutions. The most
common is the mediation-arbitration (Med-Arb). In this kind of Ombudsman
combination, parties first proceed to mediation to define the dispute
and settle as many issues as possible, and then they engage in he is a fact finder or referee hired by businesses to deal with
arbitration to settle issues that remain unresolved by the mediator. disputes inside the organization. The objective is to solve problems
and disputes quickly and informally by hearing and investigating
Class Action Administration disputes between workers.
Process Consultation
Court-Annexed Mediation
Court-Referred Mediation
Chapter VI Well-timed flinch at the exact moment when the other party
announces his terms.
The sport of Nonadversarial lawyers
2) Silence
Rock and a Hard Place- The rock is litigation, which as a means of 4) Limited authority
resolving a dispute is frustrating, time comsuiming, expensive and full
of friction. The hard place is negotiation, which can often prove Buying time to obtain more authority from an imaginary
unavailing as a means of reaching accord between two disputants, principal or a real person with greater discretion
each of whome has strong feelings about the matter. (Freund, Smart 5) Red Herring
Negotiating, 1992)
Creating distraction to muddle the real issues
LITI-GOTATION (Marc Deiner) Litigation is often used for leveraging. A
lawsuit is filed and pushed to the limit to force a favorable settlement 6) Trial Balloon
agreement.
Raising questions designed to peek into the other party’s
position without revealing your true objectives
7) Lowballing-agreeing to the offer made by the other part and 1) Position-based negotiations often involves hard-ball methods
then start chipping away at the terms of the original offer until because it is premised on the presumed superiority of one’s
the offer has been severely altered position.
8) The Bait and switch-advertising one product to bring people 2) Interest-based negotiation is much more candid and amiable
inside the store and finding excuses to explain the technique that involves the willing disclosure of all germane
unavailability of the advertised product then quickly suggest information to the other party so as to explore all avenues of
that a different product be bought instead. satisfying the needs and interests of the other side of the least
possible cost and at the shortest possible time.
9) Outrageous behavior-exhibiting socially unacceptable
demeanor to rattle the other party Leonard Koren and Peter Goodman’s dead-lock breaking techniques
(1991)
10) Written work-presenting adhesion contracts to discourage
question about the deal 1) Be positive and don’t be put off by the good word “no”
11) The vise-applying verbal pressure to force the other party “To 2) Agree on easier terms first and skip over the points that are
do better” than what is being offered and to gain concessions. bogging you down and come back to them late
12) Trade off-splitting the difference and seeking the midpoint 3) Emphasize shared goals, get back to common ground and start
building up again
13) Nibble-waiting for the major terms of the deal to be settled
then asking for the “minor” concessions to be included in the 4) Reduce complexity, break down complicated negotiations into
deal pieces and solve each piece one at a time
14) Funny Money-making mathematical calculations and dividing 5) Brainstorm with your opponent to generate various
the payments over a period of time to convey the impression alternatives
that the other party is getting a “good deal”.
6) Fine tune your agreement so that there is something that both
Two major types of unassisted negotiations: of you can find acceptable
1) Combative Negotiator- who will emphasize only his own gains 7) Passing written proposals back and forth for comment
at the expense of the other and employ hard line tactics, such
as exaggerating claims or even threatening to abandon the 8) Calling a time out when things get rough and not going your
discussion if he does not get his way. way.