What is the future of ADR in the Philippines?

By: Mymannah Lou O. Dimacaling

While looking for my old book in my cabinet, I accidentally saw an article, and it is all about the Supreme Courts promotion of Alternative Dispute Resolution (ADR) mechanism. 1 Then, I asked myself, what is ADR? I became curious about knowing what ADR is all about, and I looked for its meaning and contents. So, I found out, based on a study that 76% affirmed that ADR contributed to the ordinary citizens and the marginalized sectors access to justice. Sixty-nine percent (69%) thinks that there is fairness and justice in the mediation process, while 59% says there is fairness and justice in the mediation outcome.2 Because of that, I asked myself, is there a future for ADR in the Philippines? What is its future here in our country? Most likely, for the first question, I would say, yes, and that Alternative Dispute Resolution (ADR) will succeed in the future. Nowadays and from the past few years, ADR received compliments and favorable criticism from the people. Now, I will ask you, what is ADR? Alternative Dispute Resolution (ADR) is a method of solving disputes other than litigation or a way of settling disputes outside of the courtroom. It resolves arguments in a quick, inexpensive and flexible manner. Mediation, arbitration, negotiation, collaborative law and conciliation are the categories of ADR. It is a substitute or an alternative option given to party for not going in court. With the help of ADR, there is no need, for us, to go in court for the settlement of our dispute. Based from the article posted by Atty. Galacio, Republic Act 9285 is our countrys law providing for Alternative Dispute Resolution. ADR refers to any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in RA 9285, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof.3 Categories of ADR First, I will discuss about Mediation. Mediation is an informal alternative to litigation. Mediators are individuals trained in negotiations, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject. Mediation has become a significant method for resolving disputes between investors and their stock brokers.4 From the article posted by Atty. Galacio5, mediation of court cases was proven to be very successful. Civil cases and some criminal cases with respect to their civil aspect became the subject matter to court-referred mediation. It brought parties back to friendly relations, and it creates a winwin solution for all concerned.
1

see http://jlp-law.com/blog/supreme-court-promotes-mediation-and-alternative-dispute-resolutionmechanisms/ 2 see http://jlp-law.com/blog/supreme-court-promotes-mediation-and-alternative-dispute-resolutionmechanisms/ 3 See http://famli.blogspot.com/2008/02/republic-act-9285-alternative-dispute.html 4 see http://www.law.cornell.edu/wex/alternative_dispute_resolution 5 See http://famli.blogspot.com/2008/02/republic-act-9285-alternative-dispute.html

Mediation is the most commonplace form of ADR. The parties engage the assistance of a neutral mediator to help them reach a negotiated agreement to resolve their differences without adjudication based from Hogan Lovells article.6 It shows that mediation is helpful in settling disputes. It will not only return the parties friendly relations, but also, it can help to minimize cost among them. Arbitration, is it better or not? The second category of ADR is arbitration. In LM Power Engineering Corporation v. Capitol Industrial Construction Groups, Inc., the court declared that:7 Being an inexpensive, speedy and amicable method of settling disputes, arbitrationalong with mediation, conciliation and negotiationis encouraged by the Supreme Court. Aside from unclogging judicial dockets, arbitration also hastens the resolution of disputes, especially of the commercial kind. It is thus regarded as the wave of the future in international civil and commercial disputes. Brushing aside a contractual agreement calling for arbitration between the parties would be a step backward. Consistent with the above-mentioned policy of encouraging alternative dispute resolution methods, courts should liberally construe arbitration clauses. Provided such clause is susceptible of an interpretation that covers the asserted dispute, an order to arbitrate should be granted. Any doubt should be resolved in favor of arbitration.8 The third category is negotiation. In this category, the presence of a neutral person is in need; a person who can provide an unbiased opinion and can act either as a facilitator or a decision maker. According to Christopher W. Moore, Ph.D., Negotiation is one of the most common approaches used to make decisions and manage disputes. It is also the major building block for many other alternative dispute resolution procedures. Negotiation is the principal way that people redefine an old relationship that is not working to their satisfaction or establish a new relationship where none existed before.9 Collaborative law is the fourth category of ADR. In collaborative law, the counsel needs to assist the parties for the resolution of their disputes. A contracted term exists between the parties and counsels. They sign an agreement which provides that if a contested motion or issue will arise, both parties and lawyers must withdraw from the representation.10 Also, this law applies in divorce cases.11 In one article of Cebu Daily news, in compliance with Republic Act 9285, the Department of Agrarian Reform conducted a series of trainings on alternative dispute resolution for lawyers, legal officers and municipal agrarian reform officers in the Central Visayas.12
6

See Hogan Lovells : http://www.hoganlovells.com/files/Publication/dfe782b0-2cee-4480-8ecf548b287d0cd6/Presentation/PublicationAttachment/be8b2a76-54fa-48f1-86ca581b0ba6975a/Alternative_Dispute_Resolution.pdf 7 See G.R. No. 141833, March 26, 2003, 399 SCRA 562, 569-570; Korea Technologies Co., LTD., vs Hon. Alberto A. Lerma, GR. No. 143581, January 7, 2008 8 See Korea Technologies Co., LTD., vs Hon. Alberto A. Lerma, GR. No. 143581, January 7, 2008 9 See Negotiation by Christopher w. Moore, PH.D., http://www.au.af.mil/au/awc/awcgate/army/usace/negotiation.htm 10 See http://definitions.uslegal.com/c/collaborative-law/ 11 See http://www.hg.org/adr.html 12 See http://newsinfo.inquirer.net/119049/dar-holds-trainings-on-alternative-dispute-resolution

Finally, the last category of ADR, it is conciliation which is likely similar with mediation. It provides settlement for the resolution of a dispute. It is an act which allows the parties to have an agreement with each other. According to Hogan Lovells article13, neutral party actively helps the parties to settle the dispute by, for example, suggesting settlement options. The term is widely used to describe the facilitated settlement discussions common in the employment arena. I know that these categories, depends on which category will be chosen by the parties, will be helpful for them in the settlement of their disputes. How about you, what can you say about these categories of ADR? From the article published by Atty. Fred, as the Philippine judiciary continues to battle with hundreds of thousands of cases pending before it, the Supreme Court of the Philippines through the Justice Reform Initiatives Support (JURIS) Project promotes the use of Alternative Dispute Resolution (ADR) mechanisms to help de-clog the court dockets.14 Furthermore, in the same article, the project has contributed to efforts to change the mindset of the poor and marginalized groups, who often avoid legal matters due to sky-high cost of litigation and their perception that the law favors the rich and educated. Seeing the success rate of ADR, marginalized sectors have gained hope that they too can have access to justice, shared Atty. Soliman.15 Also, according to HG.Org, ADR has proven very helpful in many different types of legal disputes. These include divorces and other family matters, professional liability cases, personal injury situations, insurance issues, and disputes. 16 In the Philippines, there are twelve agencies that use ADR17. They are as follows: the Katarungang Pambarangay, the Cooperative Development Authority(CDA), the Philippine Construction Industry Arbitration Commission(CIAC), the Department of Agrarian Reform Adjudication Board (DARAB), the Philippine Dispute Resolution Center, Inc., the National Conciliation and Mediation Board, the National Labor Relation Commission, Bureau of Labor Relations, the Commission on the Settlement of Land Problems, the Insurance Commission, the Burea of Trade regulation and Consumer Protection, and the Court-Annexed Pilot Mediation Project. Hence, ADR provides relief, speed up resolution of cases and there are agencies created by the government to settle some disputes for the benefit of the parties. Also, it helps to attain justice in an inexpensive way. ADR will not only benefit the rich people but also for those who are in the marginalized sector.

13

See Hogan lovells: http://www.hoganlovells.com/files/Publication/dfe782b0-2cee-4480-8ecf548b287d0cd6/Presentation/PublicationAttachment/be8b2a76-54fa-48f1-86ca581b0ba6975a/Alternative_Dispute_Resolution.pdf 14 See http://jlp-law.com/blog/supreme-court-promotes-mediation-and-alternative-dispute-resolutionmechanisms/ 15 See http://jlp-law.com/blog/supreme-court-promotes-mediation-and-alternative-dispute-resolutionmechanisms/ 16 See http://www.hg.org/adr.html 17 see http://d-arch.ide.go.jp/idedp/IAL/IAL001800_005.pdf