Alternative Dispute Resolution (ADR) - Reviewer PDF

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Kenneth & King Hizon (3A) _____________________________________________Facultad de Derecho Civil 1UNIVERSITY OF SANTO TOMASFaculty of Civil Law A. 2012- First SemesterALTERNATIVE DISPUTE RESOLUTIONRepublic Act No. 9285 AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTE...

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NOTES ON ALTERNATIVE DISPUTE RESOLUTION Kenneth & King Hizon (3A)

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UNIVERSITY OF SANTO TOMAS Faculty of Civil Law A.Y. 2012-2013 First Semester

ALTERNATIVE DISPUTE RESOLUTION

Republic Act No. 9285 AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION, AND FOR OTHER PURPOSES STRATE POLICY Q: What is the policy of the State in ADR? A: It is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets.

Q: What if the parties into a contract stipulating therein that in the event of dispute arising from the same contract, they are going to refer the case to the RTC of Manila. Are they proper subjects of ADR? A: No. The dispute to be covered by the ADR must be resolved by an impartial third party who is neither a judge nor an agent of the government. If it is the court that resolves the dispute, such resolution is excluded in the ADR. Q: A and B entered into an agreement that in the event of dispute, they will resolve the controversy through arbitration. There was a breach of contract. Suppose the parties invoked their agreement, what will the court do? A:

Q: What is the Constitutional basis of ADR?

1. 2.

A:

3. ARTICLE XIII LABOR

The Court shall suspend the proceedings The court shall direct the parties to go to ADR on the basis of their contract or agreement After the proceedings in the ADR and after rendering of award, the arbitrator shall not refer the award to the court for the parties to comply

Q: What is the nature of proceedings under ADR? Section 3. XXX The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

NOTE: The employers and employees are encouraged to go ADR under the Constitution for the purpose of obtaining industrial peace. Q: What is the legal basis of ADR? Give the Civil Code provision. A: Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (1255a)

A: All proceedings under special proceedings. DEFINITION OF TERMS AND CONCEPTS Q: What is Alternative Dispute Resolution (ADR)? A: It means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof. Q: Who is an ADR provider?

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A: It means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar functions in any Alternative Dispute Resolution system.

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A: Any information, relative to the subject of mediation or arbitration, expressly intended by the source not to be disclosed, or obtained under circumstances that would create a reasonable expectation on behalf of the source that the information shall not be disclosed.

NOTE: The parties are given the right to chose non-accredited individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute.

Q: What is information?”

Q: Who is an ADR Practitioner?

A: It shall include:

A: It shall refer to individuals acting as mediator, conciliator, arbitrator or neutral evaluator.

in

the

phrase

“confidential

(1) communication, oral or written, made in a dispute resolution proceedings, including any memoranda, notes or work product of the neutral party or nonparty participant; (2) an oral or written statement made or which occurs during mediation or for purposes of considering, conducting, participating, initiating, continuing of reconvening mediation or retaining a mediator; and (3) Pleadings, motions manifestations, witness statements, reports filed or submitted in an arbitration or for expert evaluation.

Q: In what ways, ADR is implemented? A: 1. 2. 3. 4.

included

Arbitration Mediation or conciliation Mini-trial Early Neutral Evaluation

Q: What is arbitration? Q: What is Court-Annexed Mediation? A: Arbitration means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to ADR Act of 2004, resolve a dispute by rendering an award.

A: It means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute. Q: What are the purposes of a court-annexed mediation?

Q: Who determines/chooses the particular way to be utilized in resolving a dispute through the ADR? A: The parties can implement the kind of dispute resolution that they would like to avail of.

A: 1. 2. 3. 4.

To unclog the docket of the court To shorten the proceedings To help in the evaluation of elements To bring the parties into a settlement

Q: Who is an arbitrator? Illustration: A: Arbitrator means the person appointed to render an award, alone or with others, in a dispute that is the subject of an arbitration agreement. Q: What is an award? A: It means any partial or final decision by an arbitrator in resolving the issue in a controversy. Q: When is arbitration considered as commercial? A: An arbitration is "commercial ” if it covers matter arising from all relationships of a commercial nature, whether contractual or not.

Q: There is a court proceeding between A and B with regard the accounting claim of A to B. Can the court direct the parties to go to ADR in order to determine whether or not the particular amount being claimed by A is correct? A: In such case, the court may refer the parties. Since the court will have to determine the actual amount which the parties owe to each other, the court can direct the parties to go to mediation to an annex court. The judge in such case will be the judge of an annex court who is not the same judge with whom the case was first filed. The 2 courts in such case belongs to the same category or equal level. Q: What is Court-Referred Mediation?

Q: Give the rule as regards the confidentiality of information with regard to arbitration or mediation.

A: It means mediation ordered by a court to be conducted in accordance with the Agreement of the Parties when as

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action is prematurely commenced in violation of such agreement.

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A: (a) labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of the Philippines, as amended and its Implementing Rules and Regulations; (b) the civil status of persons; (c) the validity of a marriage; (d) any ground for legal separation; (e) the jurisdiction of courts; (f) future legitime; (g) criminal liability; and (h) those which by law cannot be compromised. (i) Adoption (added by Atty. Palacios)

Q: What is Early Neutral Evaluation? A: It means an ADR process wherein parties and their lawyers are brought together in an early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute. Q: What is Mediation? A: It means a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute.

MEDIATION

Q: Who is a Mediator?

CONDIDENTIALITY OF INFORMATION

A: It means a person who conducts mediation. Q: What is Mini-Trial? A: It means a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement.

Information obtained through mediation shall be privileged and confidential. A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication. GENERAL RULE (Section 9) Information obtained through mediation proceedings shall be subject to the following principles and guidelines:

Q: What is the difference between mini-trial and early neutral evaluation?

(a) Information obtained through mediation shall be privileged and confidential. (b) A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication.

A: MINI-TRIAL There is a decision and from that decision the parties are compelled to go a mediated agreement. It will result in the termination of the mediation, hence, binding.

EARLY NEUTRAL EVALUATION The resolution is merely an advice; the parties may take such resolution or not, hence, not binding

Q: May the modes of discovery under the rules of court be availed of to obtain information disclosed in mediation proceedings? A: (c) Confidential Information shall not be subject to discovery and shall be inadmissible if any adversarial proceeding, whether judicial or quasijudicial, However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation.

Q: Who is a non-party participant? A: It means a person other than a party or mediator, who participates in a mediation proceeding as a witness, resource person or expert. EXCEPTION TO THE APPLICATION OF THE ADR LAW Q: What are the cases not covered by ADR? A: The following cases are not covered by ADR?

Q: Who are the parties covered by the confidentiality rule? A: (d) In such an adversarial proceeding, the following persons involved or previously involved in a

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mediation may not be compelled to disclose confidential information obtained during mediation: (1) (2) (3) (4) (5)

the parties to the dispute; the mediator or mediators; the counsel for the parties; the nonparty participants; any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential information by reason of his/her profession.

Q: There is an on-going mediation proceedings, as a consequence of that proceedings, a party filed a case in court which involve the same issue, same parties that is the subject of mediation. Then the parties subpoenaed the mediator as a witness to testify about the mediation proceedings, can the mediator testify? A: No Q: Can the mediator voluntarily testify? A: No, because such situation will violate the rules on confidentiality Q: Can this privilege arising from the confidentiality of information in mediation proceedings be waived? A: Yes. A privilege arising from the confidentiality of information may be waived in a record, or orally during a proceeding by the mediator and the mediation parties. A privilege arising from the confidentiality of information may likewise be waived by a nonparty participant if the information is provided by such nonparty participant. Q: What is the consequence of disclosure of such confidential information by the parties covered by the rule? A: A person who discloses confidential information shall be precluded from asserting the privilege to bar disclosure of the rest of the information necessary to a complete understanding of the previously disclosed information. If a person suffers loss or damages in a judicial proceeding against the person who made the disclosure. A person who discloses or makes a representation about a mediation is preclu ded from asserting the privilege to the extent that the communication prejudices another person in the proceeding and it is necessary for the person prejudiced to respond to the representation of disclosure. Q: The rule is that if a party has been prejudiced in that situation, the recourse will be an objection as to the

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presentation of evidence that is privileged. Suppose the court did not sustain the objection, and allow the mediator to continue his testimony, what will be the aggrieved party’s recourse? A: The court may allow the party the right to respond and repudiate whatever testimony that was given by the mediator (right to rebut or counter-testimony). He may also file an action for damages. EXCEPTIONS (a) There is no privilege against disclosure under Section 9 if mediation communication is: in an evidenced by a record authenticated by all parties to the agreement; b. available to the public or that is made during a session of a mediation which is open, or is required by law to be open, to the public; c. a threat or statement of a plan to inflict bodily injury or commit a crime of violence; d. internationally used to plan a crime, attempt to commit, or commit a crime, or conceal an ongoing crime or criminal activity; e. sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a public agency is protecting the interest of an individual protected by law; a.

XPN to the XPN: This exception does not apply where a child protection matter is referred to mediation by a court or a public agency participates in the child protection mediation; f.

sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against mediator in a proceeding; or g. sought or offered to prove or disprove a claim of complaint of professional misconduct of malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation. (b) There is no privilege if a court or administrative agency, finds, after a hearing in camera, that the party seeking discovery of the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in: a.

a court proceeding involving a crime or felony; or

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b.

a proceeding to prove a claim or defense that under the law is sufficient to reform or avoid a liability on a contract arising out of the mediation.

NOTE: A mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding. CONFLICT OF INTEREST Mediator's Disclosure and Conflict of Interest Q: What is the obligation of the Mediator before accepting a mediation? A: Before accepting a mediation, an individual who is requested to serve as a mediator shall: 1) make an inquiry that is reasonable under the circumstances to determinate whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation; and 2) disclosure to the mediation parties any such fact known or learned as soon as is practical before accepting a mediation. Q: Can the mediator be asked to disclose his/her qualifications? A: Yes. At the request of a mediation party, an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute. Q: Suppose that the proposed mediator did not disclose any of the matters that he is supposed to disclose, and as a consequence of that, he was appointed as a mediator, immediately the parties knew such failure to disclose in the middle of the mediation proceedings, what can the party do? A: The party can remove the mediator and substitute another one. Failure of the party to remove the mediator means there is a waiver. Q: Can the parties ask the mediator to establish his qualification? A: At the request of a mediation party, an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute.

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A: The parties on their agreement. NOTE: The law does not require that a mediator shall have special qualifications by background or profession unless the special qualifications of a mediator are required in the mediation agreement or by the mediation parties. PARTICIPATION OF A LAWYER IN MEDIATION Q: May a party ask the assistance of a lawyer in mediation proceedings? A: Yes. A party may designate a lawyer or any other person to provide assistance in the mediation. Q: May a party be legally represented by a foreign lawyer in mediation proceedings? A: (Please refer to International Commercial Arbitration regarding legal representation by a party) PLACE OF MEDIATION Q: Where should the Mediation be held? A: The parties are free to agree on the place of mediation. Failing such agreement, the place of mediation shall be any place convenient and appropriate to all parties. ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT Q: How is a mediated settlement agreement prepared? A: A settlement agreement following successful mediation shall be prepared by the parties with the assistance of their respective counsel, if any, and by the mediator. Q: Who are required to sign the agreement? A: The parties and their respective counsels, if any, shall sign the settlement agreement. The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to them. Deposit of the Settlement Agreement Q: Where should the settlement be deposited? A: If the parties so desire, they may deposit such settlement agreement with the appropriate Clerk of a Regional Trial Court of the place where one of the parties resides. Q: How should the agreement be enforced?

Q: Who should determine the qualifications of the mediator?

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A: Where there is a need to enforce the settlement agreement, a petition may be filed by any of the parties with the same court, in which case, the court shall proceed summarily to hear the petition, in accordance with such rules of procedure as may be promulgated by the Supreme Court. Settlement agreement to be treated as an arbitral award and the mediator acting as arbitrator Q: Can the set...