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