ALTERNATIVE DISPUTE RESOLUTION

FIRST VIDEO. 1 HR 47 MIN

The government recognizes this mode of settling dispute, meaning - alternative to

judicial proceeding to settle justiciable controversies because it is more simplified,
the parties has freedom to negotiate (autonomy), faster, and economical. This is
why we have several mechanisms enforced by the government, basically by the
judiciary and the executive branch.

The concept or the doctrine of exhaustion of administrative remedies are actually

the first step within the department of the executive branch which has adjudicatory
functions or power to resolve justiciable controversies.

GENERAL PRINCIPLE: What happens in the ADR stays in the ADR. If the
ADR proceedings fail, it will not form part of the records of the case when it goes
beyond ADR and into a full-blown trial or judicial proceeding.

A. CONCILIATION – the conciliator will just guide the parties to settle/or

come into a resolution among themselves; the conciliator is a mere
facilitator. The proposal on which how to settle the dispute will come from
the parties. The conciliator cannot suggest a solution. Even the participation
of lawyers are just to guide the parties involved.

NOTE: There are ADR proceedings under the auspices of the state which
bars the lawyer to participate (e.g. katarungang pambarangay).

NOTE: Small claims court are similar but are technically not a part of ADR.

B. MEDIATION – Suggestive in nature; the mediator can suggest solutions.

C. ARBITRATION – The parties will agree in writing, and signed, to submit

their dispute/justiciable controversy for arbitration. There is an arbitrator or
panel of arbitrators elected (chosen) by the parties themselves. Each party
will present pieces of evidence (oral, documentary, object). After the
submission of evidence, the arbitrator/panel will render an award (arbitral
award). There is semblance to a judicial proceeding, but arbitration is still an
ADR. The resolution/decision in an arbitration is called an award, not a
judgment.

GENERAL PRINCIPLE: In ADR, whatever form it is, there is no winning or

losing party, everybody is actually in agreement to the outcome of the justiciable
controversy.

PD 1508 – (ESTABLISHING A SYSTEM OF AMICABLY SETTLING

DISPUTES AT THE BARANGAY LEVEL) in 1978 during Marcos regime,
alternative dispute resolution through the Katarungang Pambarangay.
RA 7160 – (AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF
1991) repealed PD 1508; incorporated the Katarungang Pambarangay in sections
399 - 422

What can be the subject of ADR (scope)?

Civil aspect of a criminal case or act (either from the penal code or a special law
with a penal sanction) where the punishment is 1 year or less of imprisonment. In a
criminal case, the primordial offended party is the State. ADR can never
compromise the criminal aspect, only the civil aspect. After settlement of the civil
aspect through ADR, the private offended party may execute an affidavit of
desistance, showing disinterest to pursue the criminal case (esp. in cases of estafa
or violation of BP 22). As a result, the prosecutor may move to the dismissal of the
case when the offended party, as the witness, is no longer interested in the case,
losing the testimony of the private complainant. However, if the prosecutor has
other pieces of evidence that may result to the conviction of the offending party,
(other than the testimony of the private complainant) the prosecution may still
pursue the criminal action.

REVISED KATARUNGANG PAMBARANGAY LAW

What disputes are subject to barangay conciliation pursuant to the Revised

Katarungang Pambarangay Law?

Prior recourse thereto is a precondition before filing complaint in court or any

government office. As a general rule, all disputes will go through barangay
conciliation proceedings except:

1. Where one party is the government or any subdivision or instrumentality of

thereof;

2. Where one party is a public officer or employee, and the dispute relates to
the performance of his official functions;

3. Where the dispute involves real properties located in different cities or

municipalities unless the parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;

4. Any complaint by or against corporations, partnerships, juridical entities,

since only private individuals shall be parties to barangay conciliation
proceedings either as complainants or respondents;

5. Disputes involving parties who actually reside in barangays of different

cities or municipalities, except where such barangay units adjoin each other,
and the parties thereto agree to submit their differences to amicable
settlement by an appropriate lupon;
 6. Offenses punishable by imprisonment exceeding one (1) year or a fine
exceeding Five thousand pesos (P5,000.00);

7. Offenses where there is no private offended party;

8. Disputes where urgent legal action is necessary to prevent injustice from

being committed or further continued especially the following: (a) criminal
cases where accused is under police custody or detention; (b) petitions for
habeas corpus by person illegally deprived of his right for custody over
another person or person illegally deprived of his liberty or one acting in his
behalf; (c) action coupled with provisional remedies (e.g. support during
dependency of the action); (d) action which may be barred by the statute of
limitations.

When the dispute is qualified to be under the coverage of barangay conciliation,

the party may not file a judicial action or case in any court or government office
exercising quasi-judicial function with adjudicatory powers, without first
complying with barangay conciliation. Otherwise, non-compliance with this rule
will result to the dismissal of the action. (condition precedent) In case of failure in
the conciliation proceedings, the party may acquire from the Lupong
Tagapamayapa a Certificate to File Action (CFA) in the proper court or
government office – to be attached to the complaint to be filed in court or quasi-
judicial government office with adjudicatory powers.

KATARUNGAN PAMBARANGAY
 
o Lupon Chairman – the Barangay Captain
o Lupon – 10-20 members aside from the chairman/captain
o Within a lupon, there is a pangkat (usually 3 members from the lupon, should
reside or work regularly in that barangay)
 
How to be a lupon member?

One should possess integrity, impartiality, independence of mind, sense of fairness

and reputation for probity to be appointed a member of lupon.
 
Term of office of lupon member?

3 years unless terminated by resignation, withdrawal, transfer of residence or work.

NOTE: When there is another person to fill the vacancy, that person
replacing will only work for the unexpired portion of the term of 3 years.
 
When the chairman of lupon did not resolve the justiciable controversy or
complaint that was submitted or filed in the barangay, a pangkat should be
constituted.
 
There shall be constituted for each dispute brought before the lupon conciliation
panel to be known as the pangkat tagapagsundo, consisting of 3 members of the
lupon, chosen by the parties to the dispute, from the least of the members of the
lupon.

The disputants will be choosing the 3 members. A draw lots will be conducted by
the lupon chairman/kapitan if the party failed to agree. Within the 3 members, they
will elect who will be the chair and the secretary. 
 
VENUE
 
Where should a complaint be filed in barangay?

o Venue can be stipulated or agreed by the parties, but the jurisdiction of the court
cannot be agreed by the parties, it is set or identified by law.
o If the venue is improper due to the party’s failure to set an agreement, the
complaint may be dismissed.
o If the court has no jurisdiction, the complaint will be dismissed motu proprio. 
 
SAME BARANGAY

Disputes between person residing in the same barangay, the complaint will be filed
in that barangay where the party resides. 
 
DIFFERENT BARANGAY

Those involving actual residence of different barangays shall bring the complaint
in the barangay where the respondent or any of the respondent actually resides at
the election of the complainant. The complainant will decide where he will file the
complaint. It must be in a barangay within the municipality or city.
 
DISPUTES INVOLVING REAL PROPERTY

All disputes involving real property, or any interest shall be brought in the
barangay where the real property or a larger portion thereof is situated.
 
DISPUTES ARISING FROM THE WORKPLACE WHERE THE
CONTENDING PARTIES ARE EMPLOYED

The parties are both employee of a workplace, the complaint shall be filed in the
barangay where the institution or workplace is located.
 
In cases of disputes of students, the complaint shall be brought in the barangay
where the school or institution is located.
 
OBJECTION TO VENUE
Objection to venue shall be raised in the mediation proceeding before the punong
barangay. The first meeting with the barangay captain. Otherwise, the same shall
be deemed waived, it means that the hearing for conciliation will continue.
 
Any legal question which may confront the punong barangay in resolving
objection to venue herein referred to may be submitted to the Secretary of Justice
or his duly designated representative who’s ruling thereon shall be binding.
 
HOW MANY DAYS DOES THE BARANGAY HAVE TO SETTLE THE
CONTROVERSY OF THE PARTIES?

The barangay only has 60 days to settle the controversy from the filing of the
complaint. If more than 60 days, the general rule is, the running of prescriptive
period will again commence.
 
PROCEDURE OF AMICABLE SETTLEMENT:

1. Complainant will file a written or oral complaint to the Lupon Chair.

(Sometimes there is already a ready form)

2. Within the next working day, after the filing of the complaint, the lupon
chair or kapitan will summon the respondent with notice to the complainant
for them and their witnesses to appear before him for conciliation/mediation.

3. If the lupon chairman fails in his mediation effort within 15 days from the
first meeting of the parties, he shall set the date for the constitution of the
pangkat.

If you received a summon but you dismissed it, it can be tolerated. Pangkat
can be constituted, but it is already exhaustive. The lupon chair can also just
issue a CFA. The Secretary of the lupon chair can also issue it without
constituting a pangkat.

SUBSTANTIAL COMPLIANCE

Diu v. CA – no condition precedent, the kapitan failed in his mediation

procedure within 15 days and he did not constitute the pangkat. the other
party is invoking that the kapitan failed to constitute pangkat. Sec. 412 LGC,
confrontation with the chairman is sufficient with the issuance of CFA that
is already substantial compliance.

The kapitan may file with the MTC a case for contempt for the non-
responsiveness of one of the respondents/parties despite summonses served.

4. If 15 days has passed and no pangkat was constituted, parties may choose
the members for the pangkat or if none was choses, through raffle.

Within that pangkat, the members will choose/elect among themselves who
will act as pangkat chairman, secretary…
The pangkat shall convene not later than three (3) days from its constitution,
on the day and hour set by the lupon chairman, to hear both parties and their
witnesses, simplify issues, and explore all possibilities for amicable
settlement.

Period to arrive at a settlement - The pangkat shall arrive at a settlement or

resolution of the dispute within fifteen (15) days from the day it convenes in
accordance with this section. This period shall, at the discretion of the
pangkat, be extendible for another period which shall not exceed fifteen (15)
days, except in clearly meritorious cases.

If more than 60 days the dispute was not resolved, a CFA will be issued.

If amicable settlement was entered into, then good. The Amicable

Settlement shall be in writing.

The amicable settlement and arbitration award shall have the force and
effect of a final judgment of a court upon the expiration of ten (10) days
from the date thereof, unless repudiation of the settlement has been made or
a petition to nullify the award has been filed before the proper city or
municipal court.

How is the amicable settlement repudiated (refuse to accept or be

associated with)?

Any party to the dispute may, within ten (10) days from the date of the
settlement, repudiate the same by filing with the lupon chairman a statement
to that effect sworn to before him, where the consent is vitiated by fraud,
violence, or intimidation. Such repudiation shall be sufficient basis for the
issuance of the certification for filing a complaint as hereinabove provided.

Appearance of Parties in Person. - In all katarungang pambarangay

proceedings, the parties must appear in person without the assistance of
counsel or representative, except for minors and incompetents who may be
assisted by their next-of-kin who are not lawyers.

If the amicable settlement was not repudiated within 10 days, how will
the compromise agreement be enforced?

Section 417. Execution. - The amicable settlement or arbitration award may

be enforced by execution by the lupon within six (6) months from the date of
the settlement. After the lapse of such time, the settlement may be enforced
by action in the appropriate city or municipal court.

There are issues or disputes that cannot be conciliated or mediated. Article

205 of the Civil Code.
 ART. 2035. No compromise upon the following questions shall be
valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.

BARANGAY ARBITRATION

What are the requirements if you want to submit a dispute for barangay
arbitration?

It is the process of resolving a dispute or a grievance outside of the court system by

presenting it to third-party or a panel for decision.

The parties may submit their dispute to the lupon chairman, or the pangkat for
arbitration. But they must first enter into a written agreement to arbitrate. The
arbitrator (panel, pangkat, or lupon) will give an award, so there must be an
agreement to abide by that award.

Section 413. Arbitration. -

(a) The parties may, at any stage of the proceedings, agree in writing that they shall
abide by the arbitration award of the lupon chairman or the pangkat. Such
agreement to arbitrate may be repudiated within five (5) days from the date thereof
for the same grounds and in accordance with the procedure hereinafter prescribed.
The arbitration award shall be made after the lapse of the period for repudiation
and within ten (10) days thereafter.

(b) The arbitration award shall be in writing in a language or dialect known to the
parties. When the parties to the dispute do not use the same language or dialect, the
award shall be written in the language or dialect known to them.

What can be repudiated?

The agreement for arbitration, within 5 days from the agreement.

The lupon chairman or pangkat shall make an award within 10 days from the lapse
of the 5-day repudiation time. So in essence, 15 days.

Can the award of the arbitration be also repudiated?

No. The arbitration award cannot be repudiated.

What is your remedy then?

File with the appropriate with the MTC a petition for nullification (of the arbitral
award of the barangay) within 10 days from the receipt of the award.
If no petition for nullification was filed, what is the effect of the arbitral
award?
It shall have the effect of a final judgment of a court.

How will it be enforced?

Enforced by execution by the lupon within 6 months from the arbitral award. After
the lapse of such time, the settlement may be enforced by action in the appropriate
city or municipal court.