The Law on Alternative Dispute Resolution: Private Justice in Hispanic Era-Discontented parties had to resort to going to the

the Philippines SC of spain which was a 36-day trip. Procedure for civil action,
akthough similar to the criminal cases, was definitely more
(Book Summary and Cases) costly and drawn-out. The high cost and unwarranted delays
by: Marian Jane Alumbro ensured that only the Europeans and the rich merchants in
the city and the wealthy landowners in the rural areas could
University of Cebu College of Law afford the prosecution of the civil suit.

Based on the book of Jim Lopez Our primitive ancestors were ahead of their times!

Caveat: This is merely a summary of the book. You should read Problems of judicial delay according to Marcos (1967):
the book at least once. This reviewer does not contain some
essential definitions because such are already defined in the 1) The misuse of the due process and the abuse of legal
law, RA 9285. No copyright infringement is intended. technicalities;

CHAPTER 1 2) The intervention of the political pressure in the court

cases;
The Law’s delay: An introduction
3) Sheer weight of the court litigations arising from
History of ADR development and growth;

Pre-hispanic era-Jose Rizal noted the custom of the 4) Dilatory tactics of lawyers;
inhabitants of the Philippines before the Spaniards reached its
shores. They submitted the decision of their elders, which 5) Neglect and laxity on the part of the judges.
they respected and carried out. According to Jose Rizal, it was The “Law’s delay” according to Florentino P. Feliciano:
better that the “..Judges were persons of the locality, forming
a jury, elected by both parties who knew the case, the 1) An efficient and mismanaged court system that fails to
customs and usages better than the gowned judge from the act promptly on legal issues ;
outside to make his fortune, to judge the case he does not
know and who does not know the usage customs and 2) The disorganized state of the court-connected
language of the locality”. It is easy to surmise that our agencies;
ancestors practiced ADR. 3) The lack of preparation on the part of the litigants and
lawyers;
 4) The trigger-happy mind frame of lawyers to engage in -Parties generally agree to enter the private court
long-winded examinations of witnesses; and system for one main reason: the public court system is too
chaotic and unwieldly.
5) The lawyers propensity to elevate their cases to the
appellate courts and needlessly filing petitions for -“vigilante justice”
mandamus, prohibition and certiorari for the purpose
of reviewing the interlocutory orders of the lower -Judges, selected by the parties and are paid on an
courts. hourly or a per session basis, are for rent not for sale. They are
paid for their time and their expertise, not their expected
But a more serious factor behind the “law’s delay” in the favors.
Philippines involves the billing practice of lawyers. (Billable
hours, number of court appearances) Delaying tactics to CON: Creates a dual court system-one rich and one
consume time. poor. No means a perfect system, it offers enormous savings
in time, effort, anxiety, money in the long haul.
The choice between a litigation and settlement is clear. He
would rather cut through the chase and solve his disputes CHAPTER 2
swiftly and move on with his life. The litigation of conflict: A Confucian Confusion
AGAN v. PIATCO (GR> NO. 15501)-SC ordered all affected Two fundamental reasons for failure of trial courts according
parties to comment made by one of the parties that PIATCO to Ralph Warner and Stephen Elias:
commences arbitration proceedings by filing a request for
arbitration with the secretariat of the Internation chamber of 1) Court Rules and Procedures are so complicated and
commerce, International Court of arbitration. inefficient that lawyer fees and other costs end up
being a bigger problem than the dispute itself.
Private Justice-the concept is fairly recent development in the
administration of justice. 2) Winner take-all sustem defies logic, encourages lying
and generally brings out the worst in all participants.
-Private “Courts” are managed by private
organizations, called ADR providers to serve those who need The Nature of Conflict
to resolve most types of consumer, civil, corporate and
commercial disputes. Conflict- clash of divergence of opinions, values and interests
and emotions.

Several phases of the conflict process by Peter Condiffe (1995)

 1) Conflict starts when parties perceive their differences- 5) Problem solving-involves an agreement in which both
they go though feelings of anziety and frustration. sides meet their objective and affective needs.

2) Realization or expression of grievances and the When a person wins through a lawsuit can compare it as a
assessment of all angles in the conflict. Pyrrhic victory (pronounced /ˈpɪrɪk/) which is a victory with
devastating cost to the victor; it carries the implication that
-some parties get afflicted with AVOIDANCE another such will ultimately cause defeat.
SYNDROME (disregarding the existence of the problem
because of relative powerlessness high risks and costs Importance of Litigation (Peter Lovenheim)
involved)
1) When you need to establish a legal precedent, such as
3) Parties choose their conflict resolution methods and the validity of the patent which your company holds;
select their strategies to settle their disagreements.
2) When you need to publicy prove the truth, such as
4) Evaluation of outcomes and the analysis of all when a customer’s complaint about the product
ramifications of full implementation of the chosen methods of quality or safety has received wide attention in the
conflict management. media product’s good name;

ADR aims to solve the conflict not win the lawsuit which is the 3) When your company’s legal rights have been infringed
aim of litigation. and you stand a good chance of collecting substantial
damages in court;
Conflict is a contest and a problem to solve (Bill Withers)
4) When your opponent is unable and unwilling to
Modes of Resolving Conflict (Blake and Moulton) participate in ADR; and
1) Withdrawal-Avoidance behavior on one or both parties 5) When serious crimes are involved in the dispute.
2) Smoothing-emphasis of common interest and yielding CHAPTER 3
by one or both parties.
The Grand Misnomer: “Alternative” Dispute Resolution”
3) Compromising-each side obtains a part of what it
wants. Legal Basis of ADR:

4) Forcing-forcing the other to acquiesce. ART. VIII, Sec. 5 (5) 1987 Consitution
 -Mandating the SC to promulgate rules that shall ART. 2035 of the Civil Code
“provide a simplified and inexpensive procedure for the
speedy disposition of cases. If related issues of the following are matters in controversy
may not be capable of being referred to arbitration:
Rule 18, Sec 2(a) 1997 Rules of Civil Procedure
1) Civil Status of persons;
-Requiring the courts to “consider the possibility of an
amicable settle or of a submission to alternative modes of 2) Validity of Marriage;
resolution.” 3) And legal separation;
“Alternative” comes from the word “alternate” which means 4) Futures support;
substitute, spare tire, a second stringer, a fallback position.
5) Future legitime;
Which is wrong because litigation should be the LAST option
not ADR. 6) Jurisdiction of the courts;
Limitations of ADR 7) Future jurisdiction of the courts.

Cases that involve: CHAPTER IV

1) Constitutional law issues The Settlement of dispute in the Philippines:

2) Anti-trust suits A culture of PAKIKISAMA

3) Probate Many Filipinos readily overcome conflict through pragmatic
means.
4) Adoption
Gini Graham’s techniques in Resolving Conflict:
5) Precedent-setting cases that involve punitive damages
1) Identify the source of the problem
6) Actions of equitable relief, and
2) Applying the appropriate problem solving techniques:
7) nuisance
a. Creative visualization-examine the reasons for
are beyond the scope of arbitration. the problem
 b. Brain-storming-come up with alternatives Impede settlement and plays key roles in clogging the
courts with frivolous suits that are brought just to “Save
c. Automatic writing-ask inner self for reactions of face” or to give a “lesson to the opposing party.
those possibilities
But, positive aspects of Filipino culture that may tend to
d. Mental Imaging-ask inner expert for advice in mitigate the Filipino propensity to litigate disputes:
making choices.
1) Kamag-anak network (close family ties)
Litigation is what many Filipino Lawyers do best. Students of
law are trained to think like lawyers, but they are not 2) Tulungan (mutual aid)
prepared to deal with they should do best: solve their client
problems and resolve their disputes with the least amount of 3) Bigayan (give and take)
time and expense. The key to decongest the courts is that 4) Palabra de Honor (Word of Honor)
students should be trained to be sensitive to their client’s
wishes to settle their conflict or dispute swiftly and without 5) Bayanihan (cooperative endeavor)
expense to court trials.
6) Hiya (shame of doing something wrong)
Filipino Conflict Management System
7) Utang na loob (recognition of a debt or obligation)
Filipino Values
8) Paggalang (respect or honor)
1) Pakikiusap-request and
9) Kompadre (godfather system)
2) Pakikisama-Companionship
10) Delikadesa (“Being proper”)
Keep communication lines open.
The Katarungan Pambarangay was seen by legislators as a
1) Amor Proprio (self-respect) means to decongest the courts’ dockets, by encouraging the
settlement of minor cases at the barangay level, which will in
2) Pasikaban (one-upmanship) turn allow the courts to speed up the adjudication of already
3) Bahala na (fatalism) pending cases. This again relates to the access-to-justice
problem in the country.
4) Gantihan (retaliation)
To ensure that the goal is met, the Local Government Code
makes KP mediation and conciliation a condition precedent to
the filing of cases in court. 7 Though non-compliance does not the parties must first agree to do so before the CIAC
result in jurisdictional defect thereby rendering the court can acquire jurisdiction to arbitrate the matter.
proceedings void ab initio, such failure, if seasonably raised,
makes the case vulnerable to a motion to dismiss on the 3) Consumer Arbitration
ground of prematurity (Garces v. CA, 162 SCRA 504). (TAKEN Consumer Act of the Philippines (RA no. 7394) provides
FROM AN ONLINE PRIMER OF THE KATARUNGAN for the creation of a consumer arbitration program to
PAMBARANGAY Published by the UP-College of Law) handle consumer complaints. They have original and
Types of Arbitration in the Philippines: exclusive jurisdiction to mediate, conciliate hear and
adjudicate all consumer complaints xxx.
1) Labor Arbitration
4) Matrimonial Mediation
The Labor Code of the Philippines makes arbitration
mandatory in cases involving the interpretation and Disputes between couples that are civil in nature may
implementation of collective bargaining agreements be the subject of court-referred mediation, subject to
(CBA) and the interpretation or enforcement of the limitations of Art. 2035 of the Civil Code.
company personnel policies. The original and exclusive The ff. disputes may not be compromised:
jurisdiction of which falls with the Voluntary
Arbitrators. (Sanyo v. Canizares) a) civil status of persons

2) Construction Arbitration b) validity of marriage or legal separation

The creation of the Construction Industry Arbitration c) any ground for legal separation
Commission (CIAC) ushered the birth of arbitration in
the construction industry.(EO. 1008) d) future support

Private or Government-entered construction contracts e) future legitime

can be submitted.
f) jurisdiction of the courts.
Tesco v. Vera-While it is true that the CIAC shall have
original and exclusive jurisdiction over disputes
connected with contracts entered into by parties 5) Corporate Arbitration
involved in the construction industry in the Philippines,
 Corporation Code provides for the mechanism to Six-Step Structure of a face-to-face mediation meeting
resolve corporate disputes. The SEC can exercise its power to
arbitrate the dispute upon written petition by any stockholder. (I-H-I-M-I-S)
(read more about powers of the SEC) 1) Introduction and agreeing of ground rules
6) Partnership Arbitration 2) Hearing what has happened or summarizing the facts
The CC states that is beyond the authority of one or 3) Identifying the issues
more but less than all the partners to enter into a
compromise or submit to arbitration a partnership 4) Mutual understanding and communicating feelings
claim or liability. When it comes to ADR, unanimous
consent of partners is needed to carry out the plant to 5) Ideal storming of a win/win solution
resolve partnership disputes without a court trial. 6) Signing of voluntary agreement.
7) Administrative Arbitration
Causes of Court Delays (Justice Myrna Dimaranan Vidal)
Doctrine of Non-exhaustion of administrative remedies 1) the misuse of the due process and the abuse of
8) Environmental Mediation
legal technicalities;
9) Executive Arbitration 2) the intervention of political pressure
10) Foreign Arbitration
in court cases;
11) Banking Arbitration 3) the sheer weight of court litigations arising
12) Mining Arbitration
from development and growth;
13) Maritime Arbitration 4) the dilatory tactics of lawyers;
14) Insurance Arbitration
5) neglect and laxity on the part of judges; and
15) IP Arbitration 6) Court vacancies.
16) Securities Arbitration
Definition of Terms: facilitator without dictating settlement. The term mediation
used under ADR Lawincludes conciliation.
Alternative Dispute Resolution
Mini-trial
It is defined as any process or procedure used to
resolve a dispute or controversy, other than by adjudication of A dispute resolution method in which the merits of a
a presiding judge of a court or an officer of a government case are argued before a panel created by agreement of the
agency, in which a neutral third party participates to assist in parties comprising senior decision makers with or without the
the resolution of issues. It includes arbitration, mediation or presence of a neutral third person after which the parties seek
conciliation, mini-trial, early neutral evaluation, or any a negotiated settlement.
combination thereof.
Early neutral evaluation
Arbitration
An alternative dispute resolution process whereby
A voluntary dispute resolution process in which one or parties and their lawyers are brought together early in a pre-
more arbitrators, appointed in accordance with the trial phase to present summaries of their cases and receive a
agreement of the parties resolve a dispute by rendering an non-binding assessment by an experienced, neutral person
award. It is the reference by mutual agreement or consent of with expertise in the subject of the dispute.
the parties of a controversy or dispute to selected persons for
an informal hearing and extra-judicial determination and
resolution. The hearing is usually held in private and the Combination of Alternative Dispute Resolution
decision of the persons selected will be a substitute for a court
judgment. This avoids the formalities, delay and expenses of A particular alternative dispute resolution may be
ordinary litigation. combined with the other types of alternative dispute
resolutions. The most common is the mediation-arbitration
Mediation (Med-Arb). In this kind of combination, parties first proceed to
A dispute resolution procedure in which an impartial mediation to define the dispute and settle as many issues as
third party, mutually chosen by the parties, acts as the referee possible, and then they engage in arbitration to settle issues
to help the contending parties settle their dispute. The that remain unresolved by the mediator.
mediator, unlike the arbitrator, has no authority to make the Class Action Administration
parties reach an agreement. He serves as a clarifier and
 Method of resolving the claims of a huge class of Ombudsman
claimants with the least possible litigation expenditures and
court cost through an administrative agency in charge of he is a fact finder or referee hired by businesses to
maintaining and tracking statistical days as well as overseeing deal with disputes inside the organization. The objective is to
restitution payments, appointed by the court or chosen by the solve problems and disputes quickly and informally by hearing
parties design a set of claims procedures. and investigating disputes between workers.

Voluntary Settlement Conference Process Consultation

just like mediation it is a non binding hearing; the this is used if there is a long-standing relationship
neutral party is allowed to express his opinions and views between the parties and they encounter problems in resolving
about the case and will be obligated to formulate an advisory the disputes. Process consultants act as counselors who focus
opinion to be submitted to the parties for review and on the process of negotiation, assisting the parties in
approval. enhancing or restoring communication lines .

Mass Tort ADR Projects (Manville Personal Injury Settlement Court-Annexed Mediation
Trust and A.H Robbins bankruptcy for claims of asbestos means any mediation process conducted under the
sufferers and for claims related to the Dalkon shield, auspices of the court, after such court has acquired
respectively) jurisdiction of the dispute
Referee or “Rent a Judge” Court-Referred Mediation
a practicing attorney or a retired judge usually acts as a means mediation ordered by a court to be conducted
referee who conducts a “trial” that incorporates the in accordance with the Agreement of the Parties when as
formalities of a regular court trial, complete with a court action is prematurely commenced in violation of such
reporter and the observance of the strict rules of evidence. agreement.
Mock-Jury trial

a “mock jury contract” sets forth all the provisions

government the dispute resolution process chosen by them,
including how the mock jury proceedings will be conducted.
 Chapter V meeting and seeing to it that everyone says his piece during
the forum.
The Mitigation of Litigation:
Mini-trials is not a trial but a rational and voluntary manner in
A Cornucopia of Non-litigative Processes structuring a settlement of disputes between two big
companies that are at loggerheads over sticky business issues.
This is otherwise known as “rent-a-judge”.
Motivating Factors that contribute to the rise in demand ADR
processes: Besides, mini-trial is a voluntary, confidential and non-binding
procedure that effects a speedy, cost-effective resolution of
1) Avoidance of high expense of litigation corporate conflict. Lawyers present summaries of their cases
to chief executives or other key decision-makers representing
2) Fear of lawsuit will result in an outcome far more both clients. (Linda Singer)
adverse than reasonably anticipated
Mini-trial contract This is signed by the parties that contains
3) Need to return workers involved in the law suit to provisions governing the conduct of discovery, how hearing
more productive activities will be handled and a few more important stipulations.
4) Wish to preserve and re-establish the business or Class action administration is a sensible approach at dispute
inter-personal relationship that was temporarily resolution is to have an administrative agency, that is in
disturbed by the conflict. charge of maintaining and tracking statistical data as well as
overseeing restitution payments, appointed by the court or
Med/Arb (Already defined in this reviewer) The parties go
chosen by the parties design a set of claims procedures and
through a phase where parties in crafting a compromise
forms that will be sent out to all the claimants.
agreement only if this goes down in flames, the mediator will
change colors-may not render a binding award as an arbitrator Voluntary settlement conference is where the neutral party,
pursuant to the agreement. However, Sec. 20 of RA 876 unlike mediation, is allowed to express his opinions and views
states, “No Arbitrator shall act as a mediator in any about the case and will be obligated to formulate an advisory
proceedings in which he is acting as an arbitrator;xxx” is opinion to be submitted to the parties for review and
subject to strict interpretation. approval.
Facilitation is a less active form of mediation. The neutral
third party or facilitator acts as a moderator in large meetings,
acting as traffic police officer directing the flow of traffic in the
Conciliation uses a neutral third party to clarify issues in The sport of Nonadversarial lawyers
dispute so that the parties concerned may themselves arrive
at a mutually acceptable agreement.

Mass tort ADR projects Leigh Steinberg, “Effective negotiation is about

exhaustive preparation, utter clarity, heartfelt communication,
Rent-A-Judge incorporates the formalities of a regular court and a sincere, demonstrated desire to fully understand not
trial, complete with a court reporter and the observance of just your own needs but the needs of other party.xxx”
the strict rule of evidence but the parties may agree to modify
or disregard most formal rules of procedure, evidence and Jesus and Socrates were two of the best negotiators of
pleading with some limitations. history. One is a form of syllogism, the other in the form of
parables.
Mock Jury Trial
Rock and a Hard Place- The rock is litigation, which as a means
Ombusdman of resolving a dispute is frustrating, time comsuiming,
expensive and full of friction. The hard place is negotiation,
Process consultation the process consultants (PC) differs from which can often prove unavailing as a means of reaching
the meditator in that there is no discussion of the specific accord between two disputants, each of whome has strong
issues or any attempt to solve them. Thus, process consultants feelings about the matter. (Freund, Smart Negotiating, 1992)
are often more like counselors who help parties to get along
better so that they can engage in better negotiation and LITI-GOTATION (Marc Deiner) Litigation is often used for
problem-solving. leveraging. A lawsuit is filed and pushed to the limit to force a
favorable settlement agreement.
ADR processes in US Government Agencies
Negotiation is a problem solving operation. (Romance
International Commercial Arbitration Languages means “to do business”)
Small claims courts Lawyers have a role to play in at least two crucial negotiation
Neighborhood dispute centers schemes:

Regulatory negotiation 1) Dispute or litigation settlement

Chapter VI 2) Transaction-planning to preventive law negotiations

Basic Negotiation Tactics

1) The wince 7) Lowballing-agreeing to the offer made by the other
part and then start chipping away at the terms of the
Well-timed flinch at the exact moment when the other original offer until the offer has been severely altered
party announces his terms.
8) The Bait and switch-advertising one product to bring
2) Silence people inside the store and finding excuses to explain
Staying absolutely quiet after making your offer or the unavailability of the advertised product then
when the other party says something that you find quickly suggest that a different product be bought
disagreeable instead.

3) Good guy/bad-guy 9) Outrageous behavior-exhibiting socially unacceptable

demeanor to rattle the other party
Working with an actual partner to make it appear to
the other party that accepting the offer of the “good 10) Written work-presenting adhesion contracts to
guy” is a much better alternative than giving in the discourage question about the deal
harsher terms “bad guy” 11) The vise-applying verbal pressure to force the other
4) Limited authority party “To do better” than what is being offered and to
gain concessions.
Buying time to obtain more authority from an
imaginary principal or a real person with greater 12) Trade off-splitting the difference and seeking the
discretion midpoint

5) Red Herring 13) Nibble-waiting for the major terms of the deal to be
settled then asking for the “minor” concessions to be
Creating distraction to muddle the real issues included in the deal

6) Trial Balloon 14) Funny Money-making mathematical calculations and

dividing the payments over a period of time to convey
Raising questions designed to peek into the other the impression that the other party is getting a “good
party’s position without revealing your true objectives deal”.

Two major types of unassisted negotiations:

 1) Combative Negotiator- who will emphasize only his 4) Reduce complexity, break down complicated
own gains at the expense of the other and employ negotiations into pieces and solve each piece one at a
hard line tactics, such as exaggerating claims or even time
threatening to abandon the discussion if he does not
get his way. 5) Brainstorm with your opponent to generate various
alternatives
2) Conciliatory negotiator-who will assume the role of a
“problem solver” rather than an intimidator. 6) Fine tune your agreement so that there is something
that both of you can find acceptable
Class of negotiations
7) Passing written proposals back and forth for comment
1) Position-based negotiations often involves hard-ball
methods because it is premised on the presumed 8) Calling a time out when things get rough and not going
superiority of one’s position. your way.

2) Interest-based negotiation is much more candid and

amiable technique that involves the willing disclosure EXHAUST ADR PROCESSES BEFORE LITIGATION.
of all germane information to the other party so as to
explore all avenues of satisfying the needs and
interests of the other side of the least possible cost
and at the shortest possible time.

Leonard Koren and Peter Goodman’s dead-lock breaking

techniques (1991)

1) Be positive and don’t be put off by the good word “no”

2) Agree on easier terms first and skip over the points

that are bogging you down and come back to them late

3) Emphasize shared goals, get back to common ground

and start building up again