ALTERNATIVE DISPUTE
RESOLUTION FOR LAW
PRACTITIONERS
ITS USES AND ADVANTAGES
Atty. Linda L. Malenab-Hornilla
Professor, PHILJA
Commissioner, NAPOLCOM
BASIC CONCEPTS AND
PRINCIPLES IN MEDIATION
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THE THEORY AND PRACTICE OF
COURT-ANNEXED MEDIATION
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
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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.
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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)
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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Facilitative processes:
3 categories
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.
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Facilitative processes:
3 categories
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.
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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
Decision
Arbitrator
Rights
Based
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
Decision
Judge
Rights
Based
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
LAW
1. Adversarial
2. Deals with situation as
defined by law
3. Uses legal language
4. Training in law
5. Knowledge of legal
procedure
ADR
1. Non-adversarial
2. Deals with situation as
it is on the ground
3. Uses ordinary,
everyday language
4. Training in negotiation
and mediation
5. Understanding of
human psychology
Three Basic Steps in Initiating ADR
a.
b.
c.
Choosing which process to use.
(mediation and/or arbitration)
Persuading the opposing party / counsel
to participate.
Selecting the appropriate provider of
dispute resolution services.
How do Disputes get to ADR?
a.
Voluntary ADR
Parties voluntarily agree to pursue ADR even if there
is no agreement before or after a dispute has arisen.
b.
Mandatory ADR
Parties 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)
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
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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
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 conflict
C. Agreement on the ground rules
and procedures
D. Creation of a safe space
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Phases and/or stages:
II. THE INTERVENTION PHASE
A.
B.
C.
D.
Exploration of the psychological and procedural issues
Exploration of substantive issues
Designing options
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: COURTANNEXED MEDIATION
It simply connotes a mediation process
conducted under the auspices of the
Court
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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 Basis
A.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 Order
Designating 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
