adr midterms

8/10/2019 ADR Midterms

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RA 9285 (Alternative Dispute Resolution Act of 2004)

Sec 2. Policy Promote party autonomy in the resolution of

disputes Promote freedom of the party to make their own

arrangements

Alternative Dispute Resolution System1. Any process or procedure2. Used to resolve a dispute or controversy3. Other than by adjudication of a presiding judge of a

court or an officer of a government agency4. In which a neutral third party participates5. To assist in the resolution of issues6. Which includes

a. Arbitrationb. Mediationc. Conciliationd. Early neutral evaluatione. Mini-trialf. Or any combination thereof

Arbitration1. A voluntary dispute resolution process2. In which one or more arbitrators3. Appointed in accordance with the agreement of the

parties or rules promulgated pursuant to this act4. Resolve a dispute by rendering an award

Court-annexed mediation1. Any mediation process2. Conducted under the auspices of the court3. After such court acquired jurisdiction of the dispute

Court-Referred Mediation1. Mediation ordered by a court2. To be conducted in accordance with the agreement

of the parties3. When as action is prematurely commenced in

violation of agreement

Early Neutral Evaluation1. An ADR process2. Wherein parties and their lawyers are brought

together early3. In a pre-trial phase4. To present summaries of their cases5. And receive a nonbinding assessment6. By an experienced, neutral person

7. With expertise in the subject in the substance of thedispute

Mini-trial 1. A structured dispute resolution method2. In which the merits of a case are argued before a

panel comprising senior decision makers3. With or without the presence of a neutral third

person4. After which the parties seek a negotiated settlement

Mediation

1. A voluntary process2. In which a mediator, selected by the disputing

parties3. Facilitates communication and negotiation4. And assist the parties in reaching a voluntary

agreement regarding a dispute

Liability of ADR provider: same as public officers

ADR Act does not apply to resolution or settlement of:1. Labor disputes covered by labor code2. Civil status of persons3. Validity of marriage4. Any ground for legal separation5. Jurisdiction of courts6. Future legitime7. Criminal liability8. Those which by law cannot be compromised

Mediation

Scope: voluntary mediation

Principles and Guidelines1. Information is confidential2. Mediator, parties NPP may refuse to disclose a

mediation communication3. Confidential information shall not be subject to

discovery & inadmissible in any adversarialproceeding

4. Confidentiality shall still be applied even mediatorfailed to act impartially

5. Mediator may not be called to testify to provideinformation gathered in mediation

Who may not be compelled to disclose1. The parties to dispute2. Mediator3. Counsel


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4. Nonparty participants5. Any person hired or engaged in connection with the

mediationa. Secretaryb. Stenographerc. Clerk/assistant

May be waivedo In recordo Orally- in proceeding by mediator

Privilege will not apply1. If mediation communication is in an agreement2. Available to the public3. If it is a threat or statement of a plan to inflict bodily

injury4. Intentionally used to plan a crime5. Sought or offered to prove abuse or disprove abuse,

neglect abandonment or exploitation in which a

public agency is protection the interest of anindividual protected by law

a. Except: where a child protection matter isreferred to mediation by court or publicagency participate in child protectionmediation

6. Sought to prove or disprove a complaint ofprofessional misconduct or malpractice filed againstthe mediator

7. Sought to prove or disprove a complaint ofprofessional misconduct filed against a party, NPP ,counsel during a mediation

8. If a court or admin agency finds after a hearing incamera that the party seeking discovery has shownthat the evidence is not otherwise available, thatthere is a need for the evidence that substantiallyoutweighs the interest in protecting confidentialityand mediation communication is offered in courtinvolving a crime or felony or proceeding to prove aclaim or defense

A mediator may not make report, assessment orother communication unless mediation occurred orterminated or settlement was reached

Participation of a lawyer- allowed to assist inmediation

Place of mediation:1. Agreement2. Any place convenient for parties

International Commercial Arbitration

Governed by: Model Law on InternationalCommercial Arbiitration

Commercial Arbitration Covers matters arising from all relationships of a

commercial nature, whether contractual or not.

Representation

In international arbitration conducted in the Phils-party may be represented by any person of hischoice

o Provided such shall not be authorized toappear in any Philippine court or quasi-

judicial body1. Unless admitted to the practice of

law

Arbitration proceedings- confidentialo Except:

1. When with consent of parties2. For the limited purpose of

disclosing to the court of relevantdocuments in cases where resortto the court is allowed

Court however may issue protective order toprevent or prohibit disclosure if:

o Containing secret processes where it isshown that applicant shall be materiallyprejudices by unauthorized disclosure

Interim measure of protection Includes

o Preliminary injunctiono Appointement of receiverso or detention, preservation, inspection of

property Granted if arbitral tribunal has no power to act or

unable to act effectively Granted by court upon written application Granted

1. To prevent irreparable loss or injury2. To provide security for the performance of

any obligation3. To produce or preserve any evidence4. To compel any other appropriate act or

omission Binding upon parties If does not comply: liable for damages

Place of Arbitration1. Agreement


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2. Metro manila Unless arbitral tribunal decide on a

different place

Language used in Arbitration1. Any based on Agreement2. English international3. English/Filipino- domestic

Arbitration of Construction Disputes Governed by: Constitution Industry Aritration Law

By written agreement an arbitrator may act asmediator and vice versa

Judicial Review of Arbitral Awards Domestic arbitral award when confirmed- enforced

in same manner as final and executory decisions ofthe RTC

Confirmation shall be made by: RTCo Except: CIAC award

Foreign Arbitral Awards Recognition shall be filed with: RTC

o With original or authenticated copy ofaward and arbitration agreement

When confirmed:o Shall be recognized and enforced as an

arbitral award Maybe be opposed opposed in accordance with

procedural rules by SC May be appealed to: CA Jurisdiction (for proceedings for recognition):

o RTC (as special proceeding) at the option ofplaintiff

1. Where arbitration was conducted2. Where asset to be attached or

levied3. Where parties reside4. National Judicial Capital Region

o Notice shall be sent to parties address1. Record of arbitration2. Last known address

Office for Alternative Dispute Resolution Attached agency to DOJ

GETTING TO YES

2 ways to negotiate:1. Soft

Wants to avoid personal conflict Makes concessions readily in order to reach

an agreement2. Hard

Sees any situation as contest of wills In which the side that takes the more

extereme positions and holds out longerfares better

3. Principed Negotiation Decides issues on the merits Suggests that you look for mutual gains

wherever possible When interest conflict, insists that the

result be based on fair standardsindependent of the will of either side

Hard on the merits, soft on the people Shows you how to obtain what you are

entitled to and still be decent Enables you to be fair while protecting you

against those who would take advantage ofyour fairness

Positional Bargaining Each sides takes position argues it, and akes

concessions to reach a compromise

3 criterias

1. It should produce a wise agreement2. Should be efficient3. Should improve or at least not damage the

relationship between the parties

Four Basic Points of Principled Negotiation1. Separate the people from the problem

a. 3 basic categories where people problemsare grouped

i. Perception1. Put yourself in their

shoes2. Discuss each other s

perceptions3. Look for opportunities to

act inconsistently withtheir perceptions

4. Give them a stake in theoutcome by making surethey participate in theprocess

a. Ask their advice


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b. Give credit forideas

5. Make your proposalsconsistent with theirvalues

ii. Emotion1. Recognize and understand

emotions

2. Make emotions explicitand acknowledgmentthem as legitimate

3. Allow other side to let offsteam

4. Don t react to emotionaloutburst

5. Use symbolic gesturesiii. Communication

Problems: Negotiators may not be talking to each other as to

be understood Even if you are talking to them, they may not be

hearing you Misundertanding

1. Listen actively andacknowledge what isbeing said

2. Speak to be understood3. Speak about yourself, not

about them4. Speak for a purpose

b. How to preventi. Build a working relationship

ii. Face the problem, not the people2. Focus on interests, not positions

a. Interestsi. Motivates people

ii. What causes you to decide b. How to identify interests

i. Ask why (put yourself in theirshoes)

ii. Ask why not (think about theirchoice)

iii. Analyze consequencesiv. Realize that each has a multiple

interestsv. The most powerful interests are

basic human needs1. Security2. Economic well-being3. Sense of belonging4. Recognition

5. Control over one s lifevi. Make a list

vii. Communicate your interestsviii. Acknowledge their interests as part

of the problemix. Put the problem before the answerx. Look forward, not back

xi. Be concrete but flexible

xii. Be hard on the problem & soft onthe people

3. Invent options for mutual gaina. 4 major obstacles that inhibit the inventing

of an abundance of optionsi. Premature judgment

ii. Searching for a single answeriii. Assumption of a fixed pieiv. Thinking that solving their problem

is their problemb. What you ll need to invent creative options

i. Separate the act of inventing from judging them

1. Brainstorminga. Before

i. Define your purposeii. Choose a few participants

iii. Change the environmentiv. Design an informal

atmosphere

v. Choose a facilitator

b. During i. Seat the participants side

by side with the problemii. Clarify the ground rules

iii. Brainstormiv. Record ideas in full

c. Afteri. Star the most promising

ideasii. Invent improvement for

promising ideasiii. Set up a time to evaluate

ideas and decide

ii. Broaden options on the table1. Multiply options by

shuttling between thespecific and general (circle

chart) [four types ofthinking]

a. Think about aparticularproblem; factualsituation youdislike

b. Descriptiveanalysis-diagnose anexisting problem


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in general terms;sort problems incategoriessuggest causes

c. Consider whatought to be done

d. Come up withsome specific

and feasiblesuggestions

2. Look through the eyes ofdifferent experts

3. Invent agreements ofdifferent strengths

4. Change the scope ofproposed agreements

iii. Search for mutual gains1. Identify shared interests

a. Shared interestslie latent in everynegotiation

b. Shared interestsare opportunities(make a goal)

c. Stress sharedinterests

2. Ask for heir preferencesiv. Invent ways of making their

decisions easy1. The other side is more

likely to accept a solutionif it seems the right thingto do

a. Fairb. Legalc. honorable

4. Insist that the result be based on some objectivestandard

a. Fair standardsb. Fair proceduresc. How to discuss with other side

i. Frame each issue as a joint searchfor objective criteria

ii. Reason and be open to reasoniii. Never yield to pressure

3 stages of negotiation1. Analysis

Simply diagnosing the the situation Gathering, organizing information

2. Planning

Generating options3. Discussion

Understanding each side

What if they are more powerful? Develop your BATNA

Note

Do not insist on a bottom line Position that is not to be changes

BATNA Purpose: to produce something better than the

results you can obtain without negotiating 3 distinct operations in generating BATNA

1. Inventing a list of actions you mightconceivably take if no agreement is reached

2. Improving some of the more promisingideas and converting them into practicalalternatives

3. Selecting the one option that seems best

What if they won t play? Use Negotiation Jujitsu

3 basic approaches for focusing their attention on the merits1. What you can do2. What they can do3. What a third party can do

Negotiation Jujitsu Do not push back When they assert their positions, do not reject them When they attack your ideas, don t defend them When they attack you, don t counterattack Instead of pushing back, sidestep their attack and

deflect it against the problem

What if they use dirty tricks?

The best way to respond to such tricky tactics is to explicitlyraise the issue in negotiations, and to engage in principlednegotiation to establish procedural ground rules for thenegotiation.

General types of tricky tactics1. Parties may engage in deliberate deception about

the facts, their authority, or their intentions. Thebest way to protect against being deceived is to seekverification the other side's claims. It may help to askthem for further clarification of a claim, or to put theclaim in writing. However, in doing this it is very


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important not to bee seen as calling the other partya liar; that is, as making a personal attack.

2. Psychological warfare. When the tricky party uses astressful environment, the principled party shouldidentify the problematic element and suggest amore comfortable or fair change. Subtle personalattacks can be made less effective simply berecognizing them for what they are. Explicitlyidentifying them to the offending party will often put

an end to suck attacks. Threats are a way to applypsychological pressure. The principled negotiatorshould ignore them where possible, or undertakeprincipled negotiations on the use of threats in theproceedings.

3. Positional pressure tactics which attempt tostructure negotiations so that only one side canmake concessions. The tricky side may refuse tonegotiate, hoping to use their entry into negotiationsas a bargaining chip, or they may open with extremedemands. The principled negotiator shouldrecognize this as a bargaining tactic, and look intotheir interests in refusing to negotiate. They mayescalate their demands for every concession theymake. The principled negotiator should explicitlyidentify this tactic to the participants, and give theparties a chance to consider whether they want tocontinue negotiations under such conditions. Partiesmay try to make irrevocable commitments to certainpositions, or to make-take-it-or-leave-it offers. Theprincipled party may decline to recognize thecommitment or the finality of the offer, insteadtreating them as proposals or expressed interests.Insist that any proposals be evaluated on theirmerits, and don't hesitate to point out dirty tricks.

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