ALTERNATIVE DISPUTE RESOLUTION FOR LAW

PRACTITIONERS

ITS USES AND ADVANTAGES

Atty. Linda L. Malenab-HornillaProfessor, PHILJA

Commissioner, NAPOLCOM

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BASIC CONCEPTS AND PRINCIPLES IN MEDIATION

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Conflict From the Latin word conflictus - “stuck

together” (Macquarie Dictionary, 1981)

– to be in opposition or at variance– a discord of action, feeling or effect– antagonism, as of interests or principles

THE THEORY AND PRACTICE OF COURT-ANNEXED MEDIATION

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Conflict Resolution

Any method, process or procedure which is intended to transform a conflict into a less costly form of interaction between the conflicting parties. However conflicts cannot always be resolved, so the terms conflict management or settlement or handling are often preferred.

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Conflict Management

Can be exercised in different ways. On a self help basis by the parties directly involved in the original conflict through indirect or direct negotiation, or it can involve third parties who intervene on their own initiative or at the invitation of both parties.

The emphasis is on the parties finding their own solutions, with the assistance of one or more mediators who facilitate and control the process.

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Procedure of Conflict Management

Culturally available system of norms or institutions that, if introduced into the conflict at a particular moment, is supposed to transform into a new conflict or a situation that is less costly than the original conflict.

Conflict escalation

Latent conflicts are characterized by underlying tensions that have not fully developed and have not escalated into a highly polarized conflict.

Emerging conflicts are conflicts where the parties are identified, they acknowledge that there is a problem, most issues are clear, but no workable negotiation or problem solving process has developed (Moore, 1987)

Manifest conflicts are those in which the parties who are actively engaged in an ongoing dispute, may have adopted strategies or styles and started to negotiate, and may have reached an impasse or stalemate (Moore, 1996)

Disputes – Conflicts relate to deep human needs and values, sometimes expressed as problems or disputes

Conflict escalation

A dispute arises when two (or more) people (or groups) perceive that their interests, needs and goals are incompatible, and seek to maximize fulfillment of their own interests, or needs, or achievement of their own goals (often at the expense of others) (Tillet, 1991).

A disagreement becomes a dispute only when the two parties are unable and/or unwilling to resolve their disagreement, that is when one or both are not prepared to accept the status quo (should that any longer be a possibility) and to accede to the demand or denial of demand by the other. A dispute is precipitated by a crisis in the relationship (Moore, 1986)

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Alternative Dispute Resolution

ADR refers to processes, other than judicial determination, in which an impartial person (an ADR practitioner) assists those in a dispute to resolve the issues between them.

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Goals of ADR Programs

- Support and complement court reform (unclog the court dockets)

- Reduce delay in the resolution of disputes- Increase access to justice for disadvantaged groups- Reduce the cost of resolving disputes- Increase civic engagement and create public processes to

facilitate economic restructuring and other social change- Help reduce the level of tension and conflict in a community- Increase popular satisfaction with dispute resolution- Manage disputes and conflicts that may directly impair

development initiatives

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ADR processes:

1. Facilitative process - processes which involve a third party providing assistance in the management of the process of dispute resolution. Generally the third party has no advisory or determinative role in the content of the dispute or the outcome of its resolution, but may advise on or determine the process whereby resolution is attempted.

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Facilitative processes: 3 categories

A. Mediation - a relatively voluntary, informal, private, democratic, collaborative approach to resolving conflict, with the third party (mediator) in charge of the process but the disputants in charge of the content and the outcomes. Mediation requires a roughly equal balance of power between parties in dispute for fair outcomes to be achieved.

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B. Conciliation - a “low-key” intervention where the third party provides an informal communication link by bringing message between parties in conflict or by providing facilities for them to meet face to face, or counseling the parties.

C. Facilitation - a relatively informal, private process in which the parties, with the assistance of an impartial third party identify the problems to be solved, tasks to be accomplished or disputed issues to be resolved.

Facilitative processes: 3 categories

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2. Advisory process - an ADR practitioner considers and appraises the dispute and provides advise as to the facts of the dispute, the law, and in some cases, possible or desirable outcomes and how these may be achieved.

3. Determinative process - an ADR practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination.

Facilitative processes: 3 categories

ARBITRATION

A process in which a neutral third party called the “arbitrator” conducts a hearing between the disputants and then, acting as a judge, renders a legally binding decision.

Less formal than litigation, and, in most hearings, strict rules of evidence will not be followed.

ARBITRATION

Rights Based

Decision

Arbitrator

Claimant Respondent

LITIGATION

Judge appointed by the State Formal process regulated by rules of

evidence and court procedure Adversarial proceedings Focus is on rights and past events Decision is imposed on the parties

LITIGATION

Rights Based

Decision

Judge

Plaintiff Defendant

ADVANTAGES AND BENEFITS OF ADR

Substantial savings in legal fees and other litigation expenses and in the time and energy of the disputants

Business relationships are preserved because interests are pursued rather than positions defended

Quicker resolution Privacy and confidentiality More options for satisfactory resolution can be

developed in ADR Better satisfaction with results Active management of the dispute

COMPARISON

LAW1. Adversarial2. Deals with situation as

defined by law3. Uses legal language

4. Training in law

5. Knowledge of legal procedure

ADR1. Non-adversarial2. Deals with situation as

it is on the ground3. Uses ordinary,

everyday language4. Training in negotiation

and mediation5. Understanding of

human psychology

Three Basic Steps in Initiating ADR

a. Choosing which process to use. (mediation and/or arbitration)

b. Persuading the opposing party / counsel to participate.

c. Selecting the appropriate provider of dispute resolution services.

How do Disputes get to ADR?

a. Voluntary ADRParties “voluntarily” agree to pursue ADR even if there

is no agreement before or after a dispute has arisen.

b. Mandatory ADRParties are “mandated” to refer their dispute to ADR

either by the terms of their agreement or order by the court.

- Pre-dispute Clause- Existing Dispute Submission Agreement- Order of the Court (court-annexed mediation)

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Mediation

Used to describe a wide range of interventions from a problem solving perspective - a process by

which the parties, together with the assistance of an acceptable, impartial person or persons, voluntarily and systematically isolate issues in need of consideration to develop a range of options, consider alternatives and reach a consensual settlement that will take into account the interests and needs of all concerned

a process that emphasizes the parties’ responsibility for making decisions that affect their lives.

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Common elements emphasized in problem solving models:

A structured, stage, cooperative, problem solving approach; the impartiality and neutrality of the mediator; voluntary participation of the parties and agreement to accept

agreed upon rules; full disclosure of all relevant information; a focus on the common interests and the needs and fears of

the individuals concerned (rather than positions); empowerment of participants, promoted through all parties

having access to information and an equal opportunity to participate in decision making;

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Common elements emphasized in problem solving models:

Need for parties to be aware of their legal rights and obligations;

focus on the present and future, not the past; primary goal is agreement or settlement of the issues

in dispute; agreements reached in mediation are not legally

binding until steps are taken elsewhere to make them so;

privacy and confidentiality is assured within clearly defined limits; and

an emphasis on consensus

Advantages of Mediation

Mediation... is voluntary process is non-binding uses an “independent third party” is confidential is without prejudice

The Mediator works to help the parties...

discover the true issues involved in their dispute

understand the difference between what they want and what they need

understand the wants and needs of the other side

realistically consider the possible options

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Basic skills used:

Communication skills of– attending– listening– responding to both feeling and meaning

Re-framing Reflective questioning assessment and referral skills skill to work as part of a team

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Phases and/or stages:

I. THE PREPARATION PHASE A. Initiating the conflict

B. Analyzing the conflictC. Agreement on the ground rules

and proceduresD. Creation of a safe space

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Phases and/or stages:

II. THE INTERVENTION PHASEA. Exploration of the psychological and procedural

issuesB. Exploration of substantive issuesC. Designing optionsD. Negotiation

Agreements in Principle Principle Negotiation Best Alternative to Negotiated Agreement (BATNA)

E. Preliminary Agreement

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Phases and/or stages:

III. THE CONSOLIDATION PHASE A. Reality testing B. Implementation, review and revision

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COURT-ANNEXED MEDIATION

The mediation program institutionalized and being implemented by the Supreme Court through the Philja and PMC in coordination with the OCA, is: COURT-ANNEXED MEDIATION

It simply connotes a mediation process conducted under the auspices of the Court

Mediation in the Philippines

1. Quasi-Judicial Bodies / Government Agencies

– Insurance Commission– DTI: Bureau of Trade Regulation and

Consumer Protection– IPRA: NCIP– RA 8293: IPO– PD 242: Government Agencies

Mediation in the Philippines

2. Katarungang Pambarangay– Pre-condition to complaint in court or

government agency– Parties: only individuals; actually

residing in same city / municipality– Parties must appear in person; no

counsel or representative

Mediation in the Philippines

3. Court-Annexed Mediation: Legal Basis- RA 8557, Sec. 1

“to ensure an efficient and credible Judiciary…to perform such other functions and duties as may be necessary in carrying out its mandate”- Action Program for Judicial Reform (APJR) “decongestion of court dockets, and the enhancement of access to justice; and towards the effective implementation of Section 2(a), Rule 18 of the 1997 Rules of Civil Procedure”

Mediation in the Philippines

3. Court-Annexed Mediation: Legal Basis- Constitution Art. 8, Sec. 5(5) …”shall provide for a simplified and inexpensive procedure for the speedy disposition of cases”- 1997 Rules of Civil Procedure Rule 18, Sec. 2(a) …”the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution”

Mediation in the Philippines

3. Court-Annexed Mediation: Legal BasisA.M. No. 01-10-5-SC Philja (16 October 2001)- Administrative Order establishing the Philippine Mediation Center (PMC);- Second Revised Guidelines for the Implementation of Mediation Proceedings;- Code of Ethical Standards for Mediators;- Standards and Procedure for Accreditation of Mediators for court-referred court-related mediation cases;- Compensation Guidelines for Mediators and Supervisors;- Memorandum of Agreement with the Philippine Mediation Foundation Inc. (PMFI)

Mediation in the Philippines

3. Court-Annexed Mediation: Legal Basis

Administrative OrderDesignating the Philippine Judicial Academy (Philja) as the component unit of the Supreme Court of the court-referred, court-related mediation cases and other alternative dispute resolution mechanisms, and establishing the Philippine Mediation Center for the purpose.

Thank you and

have a good day