Documentos de Académico
Documentos de Profesional
Documentos de Cultura
ADR
JUDICIARY
DISPUTES INVOLVING PUBLIC POLICY, PUBLIC INTEREST, CONSTITUTIONAL
ISSUES
PROPOSAL TO BROADEN COVERAGE OF MEDIATABLE CASES
INCLUDE CIVIL LIABILITY OF MORE SERIOUS CRIMES FOR COURT-ANNEXED
MEDIATION
DANGER TO LONG RANGE IMPLICATION ON SOCIETAL SECURITY WHICH
DEPENDS ON DETERRENCE FROM PUNISHMENT
CONCEPTS OF ADR
JUDICIAL MODE ARBITRATION IS AN ALTERNATIVE
ADVERSARIAL METHOD ARBITRATION NOT AN ALTERNATIVE
COMPARATIVE ADVANTAGE OF ADR OVER ADVERSARIAL METHOD
MEDIATION
1. FLEXIBILITY
2. SPEEDY RESOLUTION
3. COST EFFICIENT
4. ADDRESS UNDERLYING CAUSE OF
DISPUTE TO PREVENT RECURRENCE
5. PROMOTES RECONCILIATION
6. WIN-WIN RESULT CRAFTED BY THE
PARTIES THEMSELVES
ADJUDICATION
1. RIGID, FORMAL
2. LENGTHY
3. COSTLY
4.
PUNITIVE,
ONLY
MOTIVE
CONSIDERED
5. RECONCILIATION NOT CONSIDERED
RELEVANT
6. WIN-LOSE RESULT IMPOSED BY
THIRD PERSON
JUDICIAL REFORM
conditions
1. Dissatisfaction with Judicial Justice
CORRUPTION
COSTS
LONG DELAY IN CASE DISPOSITION
CLOGGED COURT DOCKETS
2. Desire to change it
THERE CAN BE NO IMPROVEMENT WITHOUT CHANGE
PROBLEMS SOUGHT TO BE ADDRESSED BY ADR
I. COURT DOCKET CONGESTION
II. BACKLOG OF PENDING CASES INCREASING
YEARLY
III. LONG DELAY IN CASE DISPOSAL - INTERGENERATIONAL JUSTICE
IV. CLOGGED COURT DOCKETS CAUSED BY THE OVER-USE, ABUSE AND MIS-USE OF
THE COURTS
APPROACHES TO UNCLOG DOCKETS
I. DIRECT APPROACH- OUTPUT
Increase court efficiency and disposal rate
II. INDIRECT APPROACH- INPUT
decrease filing of cases by restricting judicial access
III. COURT DIVERSION OF CASES TO COURT-ANNEXED MEDIATION
IV. JUDICIAL DISPUTE RESOLUTION (JDR)
I. DIRECT APPROACH OUTPUT ORIENTED APPROACH
FOCUS ON SYSTEMS EFFICIENCY
TO INCREASE CASE DISPOSAL RATE
1. COURT SPECIALIZATION
2. SIMPLIFICATION OF COMPLEX PROCEDURAL RULES THAT PREVENT TRIAL
ON THE MERITS OF THE CASE
3. STRICT ENFORCEMENT OF TIME BARS
4. DISCIPLINARY ACTION AGAINST SLOTH AND VIOLATION OF RULES
II. INDIRECT APPROACH- INPUT ORIENTED
Place Bar/ Condition for Access TO RESTRICT ENTRY INTO JUDICIARY
1. Prior unsuccessful conciliation
a. Katarungang Pambarangay Law
b. Between Family Members
c. Malpractice & Divorce Cases
2. Prior exhaustion of administrative remedies
PURPOSE OF DECREASED CASELOAD OF JUDGES
MORE TIME FOR WRITING QUALITY DECISIONS THAT MAY PERSUADE EVEN
LOSING PARTY TO
1. ACCEPT DEFEAT AND
2. FOREGO USELESS APPEAL
KB ALTERNATIVE PROCESSES
1. TWO STEP MEDIATION
Before the Punong Barangay
If he fails, a second mediation before the Pangkat ng Taga-Pagsundo
2. ARBITRATION
Before the Punong Barangay OR
Before the Pangkat ng Tag-Pagkasundo
EVOLUTIONARY STAGES IN CONFLICT RESOLUTION
GRIEVANCE dissatisfaction or distress with conditions of living or work
CONFLICT presupposes two antagonistic or incompatible sides
DISPUTE a contest or conflict between one who asserts a right or makes a claim
against another who denies such claim or resists it
MODES OF DISPUTE RESOLUTION
1. UNILATERAL MODE
Fight
Flight
Forgive
War
Surrender
Amnesty
2. BILATERAL MODE
Negotiation
Peace Talks
3. THIRD PARTY INTERVENTION as:
a. Decision Maker
Judge/Court
Administrative Court
Arbitrator
b. FACILITATOR PERSUADER
Conciliator/Mediator
Good Office
Early Neutral Evaluator
KINDS/ CLASSES OF ADR
FACILITATIVE ADR
EVALUATIVE ADR
OBJECTIVES OF ADR
Resolve the Dispute Speedily
Preserve Parties Relationship
Lessen the Burdens of Dispute
Address Underlying Issues and Prevent Recurrence of Dispute
ADVANTAGES OF ADR
FLEXIBILITY
SPEED OF RESOLUTION
COST EFFICIENCY
DIFFERENT MODES OF ANALYZING DISPUTES
LAWYERS APPROACH
o RIGHTS- BASED ANALYSIS
NON-LAWYER APPROACH
o PROBLEM SOLVING ANALYSIS
Participation in Mediation
A party may designate a lawyer or any other person to provide assistance in
the mediation
o A lawyer of this right shall be made in writing by the party waiving it
A waiver of participation or legal representation may be rescinded at any
time
Place of Mediation
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
Effect of Agreement to Submit Dispute to Mediation Under Institutional
Rules
An agreement to submit a dispute to mediation by any institution shall
include an agreement to be bound by the internal mediation and
administrative policies of such institution. Further, an agreement to submit a
dispute to mediation under international mediation rule shall be deemed to
include an agreement to have such rules govern the mediation of the dispute
and for the mediator, the parties, their respective counsel, and nonparty
participants to abide by such rules.
In case of conflict between the institutional mediation rules and the
provisions of this Act, the latter shall prevail.
Enforcement of Mediated Settlement Agreement
(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.
The parties and their respective counsels shall endeavor to make the terms
and condition thereof complete and make adequate provisions for the
contingency of breach to avoid conflicting interpretations of the agreement
(b) 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
(c) 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. 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
(d) The 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 award
OTHER ADR FORMS
(a) the evaluation of a third person
(b) a mini-trial
(c) mediation-arbitration
(d) INTERNATIONAL COMMERCIAL ARBITRATION