ALTERNATIVE DISPUTE RESOLUTION.pptx

8/19/2019 ALTERNATIVE DISPUTE RESOLUTION.pptx

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ALTERNATIVE DISPUTERESOLUTION

a potent tool in the speedy

disposition of claims and conflicts

cases

Atty. Ismael T. ManaligodChief Legal Di!ision DENR R"


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LE#AL $ASES

%&'( Constit)tion A*ti+le III

Section 16. All persons shall have the right

to a speedy disposition of their cases

before all judicial, quasi-judicial, oradministrative bodies.


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Re,)-li+ A+t No. &"' A,*il " "//0 1INSTITUTIONALI2ED T3E USE O4 ANALTERNATIVE DISPUTE RESOLUTION S5STEM IN

T3E P3ILIPPINES

1. Promote party autonomy in the resolution of

disputes or the freedom of the party to

mae their o!n arrangements to resolvetheir disputes.

". As a means to achieve speedy and impartial

justice and declog court docets.


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#$#%&'()# *+#+ *. "/ April 0, "6 -

INSTITUTIN# T3E USE O4 ALTERNATIVE DISPUTERESOLUTION IN T3E E6ECUTIVE DEPARTMENT O4

T3E #OVERNMENT

All administrative bodies shall promote the use

of alternative modes of dispute resolution such

as, but not limited to, mediation, conciliation

and arbitration as part of their practice inresolving disputes filed before them.


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DENR ADMINISTRATIVE ORDER No. "//1%'Se,tem-e* % "//

Adoption of Alternative ispute +esolution 2A+3

Principle and Procedure in the +esolution of

Appropriate #nvironment and atural +esources

%onflicts


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1. 4acilitate mutually-acceptable solutions for

appropriate cases5 and

". inimi7e the number of cases raised for

formal administrative or judicial resolution.

'his measure is intended to enhance public

confidence in the department as an institution

of good governance.


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7hat is an ADR System8

Any process or procedure used to resolve a

dispute or controversy, other than by adjudicationof a presiding judge of a court or an officer of a

government agency, in !hich a neutral third party

participates to assist on the resolution of issues.


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$asi+ P*in+i,les of ADR VOLUNTAR5

'he parties usually must agree to submit theirdispute to mediation or early neutral evaluation,

and may be required by the mediator to attend

facilitated !orshops, settlement conferences, or

meet !ith a neutral to e8plore the feasibility of

mediation.

TIMELINESS

A+ should shorten, not prolong, proceedings. 9ut

even if a negotiated settlement taes longer, the

result should be more beneficial to all.


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#OOD 4AIT3

'hose !ho engage in A+ should do so in an

attempt to reach agreement : not to delay orsecure tactical advantage.

CON4IDENTIALIT5

ost A+ processes require confidentiality so thatthe parties; fundamental interests can be

e8plored


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4o*ms of ADR

Arbitration

ediation

%onciliation

egotiation

ini-trial

#arly eutral #valuation

%ombination of A+


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A*-it*ation

(t means a voluntary dispute resolution process in!hich one or more arbitrators, appointed in

accordance !ith the agreement of the parties, or

rules promulgated pursuant to +A


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7ho is an a*-it*ato*8

(t is the person appointed to render an a!ard,alone or !ith others, in a dispute that is the

subject of an arbitration agreement

7hat is an a9a*d8

(t is any partial or final decision by an arbitrator

in resolving the issue in a controversy


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Mediation

(t means a voluntary process in !hich amediator, selected by the disputing parties,

facilitates communication and negotiation,

and assist the parties in reaching a

voluntary agreement regarding a dispute


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Ad!antages of Mediation

It is effe+ti!e ; (n a recent pilot projectconducted by P>(?@A, = of cases referred for

court-anne8ed mediation had reached settlement.

Surveys conducted after mediation sessions reveal

a high level of satisfaction among disputing

parties. As a result of mediation, close to 1

comply !ith agreements reached in mediation.


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Ad!antages of Mediation

It is faste* ; many cases reached settlement in 1-"sessions. 'he enormous time and effort e8pended in

litigation are avoided.

It is +ost1sa!ing : unlie rigorous court proceedings,mediation is quic and devoid of legal intricacies.

It *esto*es *elationshi,s : mediation is a proven !ayto restore relationships long torn by conflict. 'he

processes addresses deep-rooted sources of

misunderstanding !hich are inimical to business

concerns.


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Enfo*+ement of Settlement Ag*eements

Section 10 provides the follo!ing operative

principlesB

a3 A settlement agreement follo!ing successful

mediation shall be prepared by the parties !ith

the assistance of their respective counsel, if

any, and by the mediator.

'he parties and their respective counsels shallendeavor to mae the terms and condition

thereof complete and mae adequate provisions

for the contingency of breach to avoid conflicting

interpretations of the agreement.


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b3 'he parties and their respective counsels, if any,

shall sign the settlement agreement. 'he mediator

shall certify that heCshe e8plained the contents of

the settlement agreement to the parties in a

language no!n to them.

c3 (f the parties so desire, they may deposit such

settlement agreement !ith the appropriate %ler

of a +egional 'rial %ourt of the place !here one of

the parties resides. Dhere there is a need to

enforce the settlement agreement, a petition may

be filed by any of the parties !ith same court, in

!hich case, the court shall proceed summarily to

hear the petition, in accordance !ith such rules of

procedure as may be promulgated by the Supreme

%ourt.


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d3 'he parties may agree in the settlement

agreement that the mediator shall become a sole

arbitrator for the dispute and shall treat the

settlement agreement as an arbitral a!ard !hich

shall be subject to enforcement under +epublic

Act o. =06, other!ise no!n as the Arbitration

?a!, not!ithstanding the provisions of #8ecutive

*rder o. 1= for mediated dispute outside of

the %(A%.


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Con+iliation

Parties to a dispute 2including future interest disputes3

agree to utili7e the services of a conciliator, !ho then

meets !ith the parties separately in an attempt toresolve their differences.

%onciliation differs from arbitration in that the

conciliation process, in and of itself, has no legal

standing, and the conciliator usually has no authority to

see evidence or call !itnesses, usually !rites no

decision, and maes no a!ard.

%onciliation differs from mediation in that the main goal

is to conciliate, most of the time by seeing a

compromise


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Negotiation

A consensus-driven method conducted

directly bet!een parties in vie! of a

resolution, !ith or !ithout a facilitator.


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Mini1T*ial

A dispute resolution method in !hich themerits of a case are argued before a panel

created by agreement of the parties

comprising senior decision maers !ith or

!ithout the presence of a neutral thirdperson after !hich the parties see a

negotiated settlement.


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Ea*ly Ne)t*al E!al)ation

(s an alternative dispute resolution process!hereby parties and their la!yers are

brought together early in a pre-trial phase

to present summaries of their cases and

receive a non-binding assessment by ane8perienced, neutral person !ith e8pertise

in the subject of the dispute.


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Com-ination of ADR

A particular alternative dispute resolution

may be combined !ith the other types ofalternative dispute resolutions. 'he most

common is the mediation-arbitration 2ed-

Arb3. (n this ind of combination, parties

first proceed to mediation to define the

dispute and settle as many issues as

possible, and then they engage in

arbitration to settle issues that remain

unresolved by the mediator.


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7hat is Confidential Info*mation8

Any information, relative to the subject of

mediation or arbitrationB

1. intended by the source not to be

disclosed

". Dith the e8pectation that it is given

because it !ill not be disclosed


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a3 %ommunication, oral or !ritten, made in a

dispute resolution proceedings

b3 An oral or !ritten statement made or!hich occurs during mediation

c3 Pleadings, motions manifestations, !itness

statements, reports filed or submitted inan arbitrator or for e8pert evaluation.


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E:+e,tions to ADR


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b3 isclosure to the mediation parties any such fact

no!n or learned as soon as is practical before

accepting a mediation.

At the request of a mediation party, an individual !ho

is requested to serve as mediator shall disclose hisCher

qualifications to mediate a dispute.

+A


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Pa*ti+i,ants

#8cept as other!ise provided by +A


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Role>Res,onsi-ility of DPLI (dentify applications !ith disputes5

#nsures consent of parties to enter into

mediation process5

Analyses issues and concerns5

'race history of land

+esearchSupporting documents from parties

Advise parties


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Role>Res,onsi-ility of DPLI

Provides sound technical advise 2party must

agree on the advise35

+efers cases to ?upong 'agapamayapa5

(f no settlement : See E= 2c3 ?F% +A 016

ars those !ith conflict and proceed !ith

unidentified claim5

Advise parties to s!itch to formal process5 and

ocuments unresolved land disputesCcases

referred to ?upon before e8cluding them from

land titling.


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Modes of Alte*nati!eDis,)te Resol)tion

CONCILIATION1MEDIATION is a voluntary process in!hich an acceptable, impartial, and independent

third party assists disputants in finding a mutually

acceptable solution to their dispute.

SETTLEMENT7IT3 ?RD PART5INTERVENTION


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#oals of Con+iliationMediation

• )ent feelings of hostility5• %lear-up misunderstanding5• 4acilitate clear communication bet!een the parties5• etermine underlying interest and concerns5

• 4ind areas of agreementCmutual interests5• (ncorporate these areas into solutions !hich the parties devise themselves5 and• Preserve relationship.

% ili ti di ti i i t


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%onciliation-mediation is appropriate

!henB• Parties are willing to talk and negotiate.

• Relationship is important to be preserved.• Poor communication has been the reason or

one of the causes of the problem.

• There is a perception that parties cannot

solve their dierences by themselves.• There are several options available for

resolving the conict.

• Other problem-solving approaches have beenineective.


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Con+iliation1mediation is lessa,,*o,*iate 9hen@

• Parties are not prepared to negotiate.

• Parties remain unwilling to be involved inthe process of mediation.

• There are no or very few choices availableto resolve the conict.

• hen there is a legal principle to bedecided.


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D)*ing +on+iliation1mediation it isim,o*tant that@

• 'here is improved communication bet!een the parties.

• 'here is a better understanding of the other person;s point of vie!.

•

'here is a chance to spea one;s mind and be listened to in a face-to-face meeting !ith the other person.


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D)*ing +on+iliation1mediation it isim,o*tant that@

• 'here is an increased a!areness of the strengths and !eanesses of each of the parties; position and a recognition of potential hidden issues that they may not have been previously a!are of.

• 'here is e8posure to create ideas or opinions for

settlement.• 'here is an overall reduction in an8iety and the other negative effects of conflicts.

• 'he parties are made a!are of the consequences of non-settlement.

M d f Alt ti SETTLEMENT


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Modes of Alte*nati!eDis,)te Resol)tion

VOLUNTAR5 AR$ITRATION refers to the mode ofsettling disputes by !hich the parties select a

competent, trained and impartial person !ho shall

decide on the merits of the case and !hose

decision is final, e8ecutory and binding.

(t is the terminal step in the parties; grievance

machinery.

SETTLEMENT7IT3 ?RD PART5INTERVENTION


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Th*ee se)ential ,*in+i,les inhandling la-o* dis,)tes@

Prevention is better than resolution.

(f prevention is impossible, the parties themselvesshould resolve the dispute.

(f the parties cannot solve their dispute, thirdparty intervention !ith involvement of thedisputing parties should be utili7ed.


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MA$$ALOB

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