CRIM 6 Handout 1 (ADR) PDF

DISPUTE RESOLUTION & CRISES/INCIDENTS MANAGEMENT Preliminaries Alternate Dispute Resolution Act of 2004 came into law for the purpose of promulgating the prescribe procedures and guidelines for its implementation along with the policy of the state to promote party autonomy in the resolutio...

DISPUTE RESOLUTION & CRISES/INCIDENTS MANAGEMENT Preliminaries Alternate Dispute Resolution Act of 2004 came into law for the purpose of promulgating the prescribe procedures and guidelines for its implementation along with the policy of the state to promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes; to encourage and actively promote the use of Alternative Dispute Resolution ("ADR") as an important means to achieve speedy and impartial justice and to declog court dockets; to provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases; and to enlist active private sector participation in the settlement of disputes through ADR. Applying the principles governing alternative dispute resolution will provide the opportunity for the parties involved to settle the issue in their own expense with the support of the local community, authorities of the law, and responsible social organizations which aimed at restoring interpersonal relations thereby contributory to the public safety and promotion of peace in general. Amicable settlement of the other hand was formally institutionalized in order to help relieve the courts of such docket congestion and thereby enhance the quality of justice dispensed by them. In this premise, the context of restorative justice has served to reference the objective of amicably settling disputes at the elementary level within the Barangay Justice system, primarily with the objective of restoring personal relations and initiate effort from those that are mainly affected. On this part, the learners will be able to understand the purpose and goal of alternative dispute resolution, applying the procedures therein and identify the factors contributory to the success of its implementation. Moreover, the learners will be able to realize based on a practical exercise on how the mechanism on settling disputes can be applied while tracing diligently the limitations of its application. The Concept of Conflict A conflict is a struggle between people. The struggle may be physical, or between conflicting ideas. The word comes from Latin "conflingere" means to come together for a battle. Conflicts can either be within one person, or they can involve several people or groups. Conflict is a natural disagreement arising between two or more people. It exists when they have incompatible goals and one or more believe that the behavior of the other prevents them from their own goal achievement. Conflict Theories Conflict theories are perspectives in sociology and social psychology that emphasize a materialist interpretation of history, dialectical method of analysis, a critical stance toward existing social arrangements, and political program of revolution or, at least, reform. Conflict theories draw attention to power differentials, such as class conflict, and generally contrast historically dominant ideologies. It is therefore a macro-level analysis of society. 1|Page Prepared by: Alexis R. Alcantara, MSCJ  Karl Marx is the father of the social conflict theory, which is a component of the four major paradigms of sociology. Certain conflict theories set out to highlight the ideological aspects inherent in traditional thought. While many of these perspectives hold parallels, conflict theory does not refer to a unified school of thought, and should not be confused with, for instance, peace and conflict studies, or any other specific theory of social conflict. TYPES Conflict theory is most commonly associated with Marxism, but as a reaction to functionalism and the positivist method, it may also be associated with a number of other perspectives, including:  Critical theory  Feminist theory: An approach that recognizes women's political, social, and economic equality to men.  Postmodern theory: An approach that is critical of modernism, with a mistrust of grand theories and ideologies.  Post-structural theory  Postcolonial theory  Queer theory: A growing body of research findings that challenges the heterosexual bias in Western society.  World system theory  Race-Conflict Approach: A point of view that focuses on inequality and conflict between people of different racial and ethnic categories. MODERN APPROACH TO CONFLICT Charles Wright Mills (1916—1962) an American sociologist, and a professor of sociology at Columbia University from 1946 until his death in 1962. Mills was published widely in popular and intellectual journals, and is remembered for several books such as The Power Elite, which introduced that term and describes the relationships and class alliances among the US political, military, and economic elites; White Collar: The American Middle Classes, on the American middle class; and The Sociological Imagination, which presents a model of analysis for the interdependence of subjective experiences within a person's biography, the general social structure, and historical development. Societies are defined by inequality that produces conflict, rather than which produces order and consensus. This conflict based on inequality can only be overcome through a fundamental transformation of the existing relations in the society and is productive of new social relations. The disadvantaged have structural interests that run counter to the status quo, which, once they are assumed, will lead to social change. Thus, they are viewed as agents of change rather than objects one should feel sympathy for. 2|Page Prepared by: Alexis R. Alcantara, MSCJ  Human potential (eg, capacity for creativity) is suppressed by conditions of exploitation and oppression, which are necessary in any society with an unequal division of labor. These and other qualities do not necessarily have to be stunted due to the requirements of the so- called "civilizing process," or "functional necessity': creativity is actually an engine for economic development and change. Concept of Conflict Resolution Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of conflict and retribution. The term conflict resolution may also be used interchangeably with dispute resolution, where arbitration and litigation processes are critically involved. The concept of conflict resolution can be thought to encompass the use of nonviolent resistance measures by conflicted parties in an attempt to promote effective resolution. Committed group members attempt to resolve group conflicts by actively communicating information about their conflicting motives or ideologies to the rest of group (e.g., intentions; reasons for holding certain beliefs) and by engaging in collective negotiation. Dimensions of resolution typically parallel the dimensions of conflict in the way the conflict is processed. Cognitive resolution is the way disputants understand and view the conflict, with beliefs, perspectives, understandings, and attitudes. Emotional resolution is in the way disputants feel about a conflict, the emotional energy. Behavioral resolution is reflective of how the disputants act, their behavior. Ultimately a wide range of methods and procedures for addressing conflict exist, including negotiation, mediation, mediation-arbitration, diplomacy, and creative peace- building. Kenneth Thomas and Ralph Kilmann developed five conflict resolution strategies that people use to handle conflict, including avoiding, defeating, compromising, accommodating, and collaborating. This assumes that people choose how cooperative and how assertive to be in a conflict. It suggests that everyone has preferred ways of responding to conflict, but most of us use all methods under various circumstances. CONFLICT RESOLUTION STRATEGIES Conflict Resolution Strategy #1: Avoiding Avoiding is when people just ignore or withdraw from the conflict. They choose this method when the discomfort of confront exceeds the potential reward of resolution of the conflict. While this might seem easy to accommodate for the facilitator, people aren't really contributing anything of value to the conversation and may be withholding worthwhile ideas. When conflict is avoided, nothing is resolved. Conflict Resolution Strategy #2: Competing Competing is used by people who go into a conflict planning to win. They're assertive and not cooperative. This method is characterized by the assumption one side wins and everyone else loses. It doesn't allow room for diverse perspectives into a well-informed total 3|Page Prepared by: Alexis R. Alcantara, MSCJ picture. Competing might work in sports or war, but it's rarely a good strategy for group problem solving. Conflict Resolution Strategy #3: Accommodating Accommodating is a strategy where one party gives in to the wishes or demands of another. They're being cooperative but not assertive. This may appear to be a gracious way to give in when one figures out s/he has been wrong about an argument. It's less helpful when one party accommodates another merely to preserve harmony or to avoid disruption. Like avoidance, it can result in unresolved issues. Too much accommodation can result in groups where the most assertive parties commandeer the process and take control of most conversations. Conflict Resolution Strategy #4: Collaborating Collaborating is the method used when people are both assertive and cooperative. A group may learn to allow each participant to make a contribution with the possibility of co- creating a shared solution that everyone can support. A great way to collaborate and overcome conflict is to reach out to them. Conflict Resolution Strategy #5: Compromising Another strategy is compromising, where participants are partially assertive and cooperative. The concept is that everyone gives up a little bit of what they want, and no one gets everything they want. The perception of the best outcome when working by compromise is that which splits the difference. Compromise is perceived as being fair, even if no one is particularly happy with the outcome. ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES (Republic Act No. 9285) Policy of the State The following statements provide the Policy of the State as reference for the sustenance of social justice and promotion of peace while making it at the early stage of resolution.  To promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes;  To encourage and actively promote the use of Alternative Dispute Resolution ("ADR") as an important means to achieve speedy and impartial justice and to declog court dockets;  To provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases;  To enlist active private sector participation in the settlement of disputes through ADR. Terms to Ponder  Alternative Dispute Resolution - a means to achieve speedy and impartial justice to declog court dockets. 4|Page Prepared by: Alexis R. Alcantara, MSCJ   ADR Provider means the institutions or persons accredited as mediators, conciliators, arbitrators, neutral evaluators or any person exercising similar functions in any Alternative Dispute Resolution system. This is without prejudice to the rights of the parties to choose non-accredited individual to act as mediator, conciliator, arbitrator or neutral evaluator of their dispute.  Alternative Dispute Resolution System means 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 the ADR Act, in which a neutral third person participates to assist in the resolution of issues, including arbitration, mediation, conciliation, early neutral evaluation, mini-trial or any combination thereof.  Arbitration means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties or these Rules, resolve a dispute by rendering an award.  Arbitrator means the person appointed to render an award, alone or with others, in a dispute that is the subject of an arbitration agreement.  Mediation means a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute.  Mediator means a person who conducts mediation.  Arbitration Agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen, or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.  Mediation-Arbitration or Med-Arb is a step dispute resolution process involving both mediation and arbitration.  Authenticate means to sign, execute, adopt a symbol or encrypt a record in whole or in part, intended to identify the authenticating party and to adopt, accept or establish the authenticity of a record or term.  Award means any partial or final decision by an arbitrator in resolving the issue or controversy.  Confidential Information means any information, relative to the subject of mediation or arbitration, expressly intended by the source not to be disclosed, or obtained under circumstances that would create a reasonable expectation on behalf of the source that the information shall not be disclosed. It shall include: a. communication, oral, or written, made in a dispute resolution proceeding, including any memoranda, note or work product of the neutral party or non-party participant; b. an oral or written statement made or which occurs during mediation or for purposes of considering, conducting, participating, initiating, continuing or reconvening mediation or retaining a mediator; and 5|Page Prepared by: Alexis R. Alcantara, MSCJ  c. pleadings, motions, manifestations, witness statements, reports field or submitted in arbitration or for expert evaluation.  Counsel means a lawyer duly admitted to the practice of law in the Philippines and in good standing who represents a party in any ADR process.  Court means Regional Trial Court except insofar as otherwise defined under the Model Law.  Court-Annexed Mediation means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute.  Court-Referred Mediation means mediation ordered by a court to be conducted in accordance with the Agreement of the Parties when as action is prematurely commenced in violation of such agreement.  Early Neutral Evaluation means an ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute.  Government Agency means any governmental entity, office or officer, other than a court, that is vested by law with quasi-judicial power or the power to resolve or adjudicate disputes involving the government, its agencies and instrumentalities or private persons.  Mini-Trial means a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement.  Model Law means the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985.  Proceedings means a judicial, administrative or other adjudicative process, including related prehearing or post hearing motions, conferences and discovery.  Record means information written on a tangible medium or stored in an electronic or other similar medium, retrievable in a perceivable form.  Roster means a list of persons qualified to provide ADR services as neutrals or to serve as arbitrators.  Special ADR Rules means the Special Rules of Court on Alternative Dispute Resolution issued by the Supreme Court on September 1, 2009 Exception to the Application of the ADR Act The provisions of the ADR Act shall not apply to the resolution or settlement of the following: 6|Page Prepared by: Alexis R. Alcantara, MSCJ  labor disputes covered by Presidential Decree No. 442, otherwise known as the "Labor Code of the Philippines, as amended", and its Implementing Rules and Regulations; the civil status of persons; the validity of marriage; any ground for legal separation; the jurisdiction of courts; future legitime; criminal liability; those disputes which by law cannot be compromised; and disputes referred to court-annexed mediation. Liability of ADR Providers/Practitioners The ADR providers/practitioners shall have the same civil liability for acts done in the performance of their official duties as that of public officers, upon a clear showing of bad faith, malice or gross negligence. What is International Commercial Arbitration? Arbitration is any arbitration whether or not administered by a permanent arbitration institution. International Arbitration is an arbitration where the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states or one of the following places is situated outside the Philippines in which the parties have their places of business wherein – a. the place of arbitration if determined in, or pursuant to the arbitration agreement; b. any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected, or the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country. For the purpose of International Arbitration, the New York Convention is the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by the Philippine Senate under Senate Resolution NO.71. The following are important terms to consider:  Non-Convention Award means a foreign arbitral award made in a state, which is not a Convention State. 7|Page Prepared by: Alexis R. Alcantara, MSCJ   Non-Convention State means a state that is not a member of the New York Convention.  Appointing Authority as used in the Model Law shall mean the person or institution named in the arbitration agreement as the appointing authority; or the regular arbitration institution under whose rules the arbitration is agreed to be conducted. Where the parties have agreed to submit their dispute to institutional arbitration rules, and unless they have agreed to a different procedure, they shall be deemed to have agreed to the procedure under such arbitration rules for the selection and appointment of arbitrators. In ad hoc arbitration, the default appointment of an arbitrator shall be made by the National President of the Integrated Bar of the Philippines (IBP) or his/her duly authorized representative.  Arbitral Tribunal (under the Model Law) means a sole arbitrator or a panel of arbitrators.  Commercial Arbitration means an arbitration that covers matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to any trade transaction for the supply or exchange of goods or services; distribution agreements; construction of works; commercial representation or agency; factoring; leasing; consulting; engineering; licensing; investment; financing; banking; insurance; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.  Convention Award means a foreign arbitral award made in a Convention State.  Court (under the Model Law) means a body or organ of the judicial system of the Philippines (i.e., the Regional Trial Court, Court of Appeals and Supreme Court). What is Domestic Arbitration? Domestic Arbitration is an arbitration that is not international. The following are important terms to consider:  Ad hoc Arbitration means an arbitration administered by an arbitrator and/or the parties themselves. An arbitration administered by an institution shall be regarded as an ad hoc arbitration if such institution is not a permanent or regular arbitration institution in the Philippines.  Appointing Authority in Ad Hoc Arbitration means, in the absence of an agreement, the National President of the IBP or his/her duly authorized representative.  Appointing Authority Guidelines means the set of rules approved or adopted by an appointing authority for the making of a Request for Appointment, Challenge, Termination of the Mandate of Arbitrator/s and for taking action thereon.  Arbitration means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties or these Rules, resolve a dispute by rendering an award. 8|Page Prepared by: Alexis R. Alcantara, MSCJ   Arbitral Tribunal means a sole arbitrator or a panel, board or committee of arbitrators.  Claimant means person/s with a claim against another and who commence/s arbitration against the latter.  Court means, unless otherwise specified in these Rules, a Regional Trial Court.  Day means calendar day.  Institutional Arbitration means arbitration administered by an entity, which is registered as a domestic corporation with the Securities and Exchange Commission (SEC)' and engaged in, among others, arbitration of disputes in the Philippines on a regular and permanent basis.  Request for Appointment means the letter request to the appointing authority of either or both parties for the appointment of arbitrator/s or of the two arbitrators first appointed by the parties for the appointment of the third member of an arbitral tribunal.  Representative is a person duly authorized in writing by a party to a dispute, who could be a counsel, a person in his/her employ or any other person of his/her choice, duly authorized to represent said party in the arbitration proceedings.  Respondent means the person/s against whom the claimant commence/s arbitration.  Written communication means the pleading, motion, manifestation, notice, order, award and any other document or paper submitted or filed with the arbitraltribunal or delivered to a party. What are the other forms of Alternative Dispute Resolution?  Early Neutral Evaluation is an ADR process wherein parties and their lawyers are brought together early in the pre-trial phase to present summaries of their cases and to receive a nonbinding assessment by an experienced neutral person, with expertise in the subject matter or substance of the dispute.  Mediation-Arbitration or Med-Arb is a two-step dispute resolution process involving mediation and then followed by arbitration.  Mini trial is a structured dispute resolution method in which the merits of a case are argued before a panel comprising of senior decision makers, with or without the presence of a neutral third person, before which the parties seek a negotiated settlement. THE OFFICE OF ALTERNATIVE DISPUTE RESOLUTION The Office of Alternative Dispute Resolution is an agency attached to the Department of Justice which shall have a Secretariat and shall be headed by an Executive Director, who shall be appointed by the President of the Philippines, taking into consideration the recommendation of the Secretary of Justice. Powers of the OADR 9|Page Prepared by: Alexis R. Alcantara, MSCJ   To act as appointing authority of mediators and arbitrators when the parties agree in writing that it shall be empowered to do so.  To conduct seminars, symposia, conferences and other public fora and publish proceedings of said activities and relevant materials/information that would promote, develop and expand the use of ADR.  To establish an ADR library or resource center where ADR laws, rules and regulations, jurisprudence, books, articles and other information about ADR in the Philippines and elsewhere may be stored and accessed.  To establish a training programs for ADR providers/ practitioners, both in the public and private sectors; and to undertake periodic and continuing training programs for arbitration and mediation and charge fees on participants. It may do so in conjunction with or in cooperation with the IBP, private ADR organizations, and local and foreign government offices and agencies and international organizations.  To certify those who have successfully completed the regular professional training programs provided by the OADR.  To charge fees for services rendered such as, among others, for training and certifications of ADR providers.  To accept donations, grants and other assistance from local and foreign sources.  To exercise such other powers as may be necessary and proper to carry into effect the provisions of the ADR Act. Functions of the OADR  To promote, develop and expand the use of ADR in the private and public sectors through information, education and communication.  To monitor, study and evaluate the use of ADR by the private and public sectors for purposes of, among others, policy formulation.  To recommend to Congress needful statutory changes to develop, strengthen and improve ADR practices in accordance with international professional standards.  To make studies on and provide linkages for the development, implementation, monitoring and evaluation of government and private ADR programs and secure information about their respective administrative rules/procedures, problems encountered and how they were resolved.  To compile and publish a list or roster of ADR providers/ practitioners, who have undergone training by the OADR, or by such training providers/institutions recognized or certified by the OADR as performing functions in any ADR system. The list or roster shall include the addresses, contact numbers, e-mail addresses, ADR service/s rendered (eg, arbitration, mediation) and experience in ADR of the ADR providers/practitioners. 10 | P a g e Prepared by: Alexis R. Alcantara, MSCJ   To compile a list or roster of foreign or international ADR providers/practitioners. The list or roster shall include the addresses, contact numbers, e-mail addresses, ADSR service/s rendered (eg, arbitration, mediation) and experience in ADR of the ADR providers/practitioners Divisions of the OADR The OADR has following staff and service divisions:  Secretariat - which shall provide necessary support and discharge such other functions and duties as may be directed by the Executive Director.  Public Information and Promotion Division - which shall be charged with the dissemination of information, the promotion of the importance and public acceptance of mediation, conciliation, arbitration or any combination thereof and other ADR forms as a means of achieving speedy and efficient means of resolving all disputes and to help in the promotion, development and expansion of the use of ADR.  Training Division - which shall be charged with the formulation of effective standards for the training of ADR practitioners; conduct of trainings in accordance with such standards; issuance of certifications of training to ADR practitioners and ADR service providers who have undergone the professional training provided by the OADR; and the coordination of the development, implementation, monitoring and evaluation of government and private sector ADR programs.  Records and Library Division - which shall be charged with the establishment and maintenance of a central repository of ADR laws, rules and regulations, jurisprudence, books, articles, and other information about ADR in the Philippines and elsewhere. THE ADVISORY COUNCIL Composition of the Advisory Council  Mediation profession  Arbitration profession  ADR organizations  IBP  Academe Role of the Advisory Council The Advisory Council is responsible to advise the Executive Director on policy, operational and other relevant matters. The Council shall meet regularly, at least once every two (2) months, or upon call by the Executive Director. The MEDIATION Process Mediation is a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute.The following are important terms to consider:  Ad hoc Mediation means any mediation other than institutional or court-annexed. 11 | P a g e Prepared by: Alexis R. Alcantara, MSCJ   Institutional Mediation means any mediation administered by, and conducted under the rules of, a mediation institution.  Court-Annexed Mediation means any mediation process conducted under the auspices of the court and in accordance with Supreme Court approved guidelines, after such court has acquired jurisdiction of the dispute.  Court-Referred Mediation means mediation ordered by a court to be conducted in accordance with the agreement of the parties then an action is prematurely commended in violation of such agreement.  Certified Mediator means a mediator certified by the Office for ADR as having successfully completed its regular professional training program.  Mediation Party means a person who participates in a mediation and whose consent is necessary to resolve the dispute.  Mediator means a person who conducts mediation.  Non-Party Participant means a person, other than a party or mediator, who participates in a mediation proceeding as a witness, resource person or expert. For the purpose of mediation, it shall be applied voluntarily whether ad hoc or institutional, other than court-annexed mediation and only in default of an agreement of the parties on the applicable rules. It shall also apply to all cases pending before administrative or quasi-judicial agencies that are subsequently agreed upon by the parties to be referred to mediation. In applying and construing the rule on mediation, consideration must be given on the need to promote candor of parties and mediators through confidentiality of the mediation process, the policy of fostering prompt, economical and amicable resolution of disputes in accordance with principles of integrity of determination by the parties and the policy that the decision-making authority in the mediation process rests with the parties. A party may petition a court before which an action is prematurely brought in a matter which is the subject of a mediation agreement, if at least one party so requests, not later than the pre-trial conference or upon the request of both parties thereafter, to refer the parties to mediation in accordance with the agreement of the parties.  Selection of a Mediator The parties have the freedom to select their mediator. The parties may request the OADR to provide them with a list or roster or the resumes of its certified mediators. The OADR may be requested to inform the mediator of his/her selection.  Replacement of Mediator If the mediator selected is unable to act as such for any reason, the parties may, upon being informed of such fact, select another mediator. 12 | P a g e Prepared by: Alexis R. Alcantara, MSCJ   Refusal or Withdrawal of Mediator A mediator may refuse from acting as such, withdraw or may be compelled to withdraw, from the mediation proceedings under the following circumstances:  If any of the parties so requests the mediator to withdraw.  The mediator does not have 'the qualifications, training and experience to enable him/her to meet the reasonable expectations of the parties.  Where the mediator's impartiality is in question.  If continuation of the process would violate any ethical standards.  If the safety of any of the parties would be jeopardized.  If the mediator is unable to provide effective services.  In case of conflict of interest.  In any of the following instances, if the mediator is satisfied that: o one or more of the parties is/are not acting in good faith; o the parties' agreement would be illegal or involve the commission of a crime; o continuing the dispute resolution would give rise to an appearance of impropriety; o continuing with the process would cause significant harm to a nonparticipating person or to the public, or o continuing discussions would not be in the best interest of the parties, their minor children or the dispute resolution process. THE ETHICAL CONDUCT OF MEDIATOR Competence It is not required that a mediator shall have special qualifications by background or profession unless the special qualifications of a mediator are required in e mediation agreement or by the mediation parties. However, the certified mediator shall:  maintain and continually upgrade his/her professional competence in mediation skills;  ensure that his/her qualifications, training and experience are known to and accepted by the parties; and  serve only when his/her qualifications, training and experience enable him/her to meet the reasonable expectations of the parties and shall not hold himself/herself out or give 13 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  the impression that he/she has qualifications, training and experience that he/she does not have.  Upon the request of a mediation party, an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute. Impartiality A mediator shall maintain impartiality. Before accepting a mediation, an individual who is requested to serve as a mediator shall:  make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation; and  disclose to the mediation parties any such fact known or learned as soon as is practical before accepting a mediation. Confidentiality A mediator shall keep in utmost confidence all confidential information obtained in the course of the mediation process. A mediator shall discuss issues of confidentiality with the mediation parties before beginning the mediation process including limitations on the scope of confidentiality and time extent of confidentiality provided in any private sessions or caucuses that the mediator holds with a party. Consent and Self-Determination A mediator shall make reasonable efforts to ensure that each party understands the nature and character of the mediation proceedings including private caucuses, the issues, the available options, the alternatives to non-settlement, and that each party is free and able to make whatever choices he/she desires regarding participation in mediation generally and regarding specific settlement options. If a mediator believes that a party, who is not represented by counsel, is unable to understand, or fully participate in, the mediation proceedings for any reason, a mediator may either:  limit the scope of the mediation proceedings in a manner consistent with the party's ability to participate, and/or recommend that the party obtain appropriate assistance in order to continue with the process; or  terminate the mediation proceedings.  A mediator shall recognize and put in mind that the primary responsibility of resolving a dispute and the shaping of a voluntary and uncoerced settlement rests with the parties. Separation of Mediation from Counseling and Legal Advice 14 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  a. Except in evaluative mediation or when the parties so request, a mediator shall:  refrain from giving legal or technical advice and otherwise engaging in counseling or advocacy; and  abstain from expressing his/her personal opinion on the rights and duties of the parties and the merits of any proposal made. b. Where appropriate and where either or both parties are not represented by counsel, a mediator shall:  Recommend that the parties seek outside professional advice to help them make informed decision and to understand the implications of any proposal; and  Suggests that the parties seek independent legal and/or technical advice before a settlement agreement is signed. c. Without the consent of all parties, and for a reasonable time under the particular circumstances, a mediator who also practices another profession shall not establish a professional relationship in that other profession with one of the parties, or any person or entity, in a substantially and factually related matter. Charging of Fees a. A mediator shall fully disclose and explain to the parties the basis of cost, fees and charges. b. The mediator who withdraws from the mediation shall return to the parties any unearned fee and unused deposit. c. A mediator shall not enter into a fee agreement which is contingent upon the results of the mediation or the amount of the settlement. Promotion of Respect and Control of Abuse of Process The mediator shall encourage mutual respect between the parties, and shall reasonably steps, subject to the principle of self-determination, to limit abuses of the mediation process. Solicitation or Acceptance of any Gift No mediator any member of a mediator's immediate family or his/her agent shall request, solicit, receive or accept any gift or any type of compensation other than the agreed fee and expenses in connection with any matter coming before the mediator. ROLE OF PARTIES AND THEIR COUNSELS Designation of Counselor any Person to Assist Mediation 15 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  A party may designate a lawyer or any other person to provide assistance in the mediation. A waiver 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. The Role of the Counsel  The lawyer shall view his/her role in mediation as a collaborator with the other lawyer in working together toward the common goal of helping their clients resolve their differences to their mutual advantage.  The lawyer shall encourage and assist his/her client to actively participate in positive discussions and cooperate in crafting an agreement to resolve their dispute.  The lawyer must assist his/her client to comprehend and appreciate the mediation process and its benefits, as well as the client's greater personal responsibility for the success of mediation in resolving the dispute.  In preparing for participation in mediation, the lawyer shall confer and discuss with his/her client the following: o The mediation process as essentially a negotiation between the parties assisted by their respective lawyers, and facilitated by a mediator, stressing its difference from litigation, its advantages and benefits, the client's heightened role in mediation and responsibility for its success and explaining the role of the lawyer in mediation proceedings. o The substance of the upcoming mediation such as:  The substantive issues involved in the dispute and their prioritization in terms of importance to his/her client's real interests and needs.  The study of the other party's position in relation to the issues with a view to understanding the underlying interests, fears, concerns and needs.  The information or facts to be gathered or sought from the other side or to be exchanged that are necessary for informed decision-making.  The possible options for settlement but stressing the need to be open-minded about other possibilities.  The best, worst and most likely alternatives to a non-negotiated settlement. Other Matters which the Counsel shall not Assist Mediation The lawyer:  shall give support to the mediator so that his/her client will fully understand the rules and processes of mediation; 16 | P a g e Prepared by: Alexis R. Alcantara, MSCJ   shall impress upon his/her client the importance of speaking for himself/herself and taking responsibility for making decisions during to negotiations within the mediation process;  may ask for a recess in order to give advice or suggestions to his/her client in private, if he/she perceives that his/her client is unable to bargain effectively;  shall assist his/her client and the mediator put in writing the terms of the settlement agreement that the parties have entered into. The lawyers shall see to it that the terms of the settlement agreement are not contrary to law, morals, good customs, public order or public policy. The following articles shall be considered in the Conduct of Mediation a. The mediator shall not make untruthful or exaggerated claims about the dispute resolution process, its costs and benefits, its outcome or the mediator's qualifications and abilities during the entire mediation process. b. The mediator shall help the parties reach a satisfactory resolution of their dispute but has no authority to impose a settlement on the parties. c. The parties shall personally appear for mediation and may be assisted by a lawyer. A party may be represented by an agent who must have full authority to negotiate and settle the dispute. d. The mediation process shall, in general, consist of the following stages:  Opening statement of the mediator;  Individual narration by the parties;  Exchange by the parties;  Summary of issues,  Generation and evaluation of options; and  Closure e. The mediation proceeding shall be held in private. Persons, other than the parties, their representatives and the mediator, may attend only with the consent of all the parties. f. The mediation shall be closed:  By the execution of a settlement agreement by the parties;  By the withdrawal of any party from mediation; and  By the written declaration of the mediator that any further effort at mediation would not be helpful. PLACE OF MEDIATION 17 | P a g e Prepared by: Alexis R. Alcantara, MSCJ Agreement of Parties on the 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. Agreement to Submit a Dispute to Mediation by an Institution An agreement to submit a dispute to mediation by an 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 institutional mediation rules 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 counsels and non-party participants to abide by such rules. Operative Principles to Guide Mediation The mediation shall be guided by the following operative principles: a. A settlement agreement following successful mediation shall be prepared by the parties with the assistance of their respective counsels, if any, and by the mediator. The parties and their respective counsels shall endeavor to make the terms and condition of the settlement agreement complete and to 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 agree, the settlement agreement may be jointly deposited by the parties or deposited by one party with prior notice to the other party/ies with the Clerk of Court of the Regional Trial Court (a) where the principal place of business in the Philippines of any of the parties is located; (b) if any of the parties is an individual, where any of those individuals resides; or (c) in the National Capital Judicial Region. 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, in accordance with the Special ADR Rules. 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 which shall be subject to enforcement under Republic Act No. 876, otherwise known as "The Arbitration Law", notwithstanding the provisions of Executive Order No. 1008, s. 1985, otherwise known as the "Construction Industry Arbitration Law” for mediated disputes outside of the Construction Industry Arbitration Commission. CONFIDENTIALITY OF INFORMATION Confidentiality of Information Information obtained through mediation proceedings shall be subjected to the following principles and guidelines 18 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  a. Information obtained through mediation shall be privileged and confidential. b. A party, mediator, or non-party participant may refuse to disclose and may prevent any other person from disclosing a confidential information. c. Confidential information shall not be subject to discovery and shall be inadmissible in any adversarial proceeding, whether judicial or quasi-judicial. However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation. d. In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during the mediation:  the parties to the dispute;  the mediator or mediators;  the counsel for the parties;  the non-party participants;  any person hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and  any other person who obtains or possesses confidential information by reason of his/her profession. e. The protections of the ADR Act shall continue to apply even if a mediator is found to have failed to act impartially. f. A mediator may not be called to testify to provide confidential information gathered in mediation. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his/her attorney's fees and related expenses. Waiver of Confidentiality a. A privilege arising from the confidentiality of information may be waived in a record or orally during a proceeding by the mediator and the mediation parties. b. With the consent of the mediation parties, a privilege arising from the confidentiality of information may likewise be waived by a nonparty participant if the information is provided by such non-party participant. c. A person who discloses confidential information shall be precluded from asserting the privilege under Confidentiality of Information to bar disclosure of the rest of the information necessary to a complete understanding of the previously disclosed information. If a person suffers loss or damage as a result of the disclosure of the confidential information, he/she shall be entitled to damages in a judicial proceeding against the person who made the disclosure. 19 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  d. A person who discloses or makes a representation about mediation is precluded from asserting the privilege mentioned in Confidentiality of Information to the extent that the communication prejudices another person in the proceeding and it is necessary for the person prejudiced to respond to the representation or disclosure. Exceptions to the Privilege of Confidentiality of Information a. There is no privilege against disclosure in the following instances:  In an agreement evidenced by a record authenticated by all parties to the agreement;  Available to the public or made during a session of a mediation which is open, or is required by law to be open, to the public  A threat or statement of a plan to inflict bodily injury or commit a crime of violence;  intentionally used to plan a crime, attempt to commit, or commit a crime, or conceal an ongoing crime or criminal activity;  sought or offered to prove or disprove abuse neglect, abandonment or exploitation in a proceeding in which a public agency is protecting the interest of an individual protected by law; but this exception does not apply where a child protection matter is referred to mediation by a court or where a public agency participates in the child protection mediation;  sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator in a proceeding; or  sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during mediation. b. If a court or administrative agency finds, after hearing in camera, that the party seeking discovery of the proponent of the evidence has shown that evidence is not otherwise available, that there is need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered:  a court proceeding involving a crime or felony;  a proceeding to prove a claim or defense that under the law is sufficient to reform or avoid a liability on a contract arising out of the mediation.  a mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding.  If a mediation communication is not privileged under an exception in paragraph (a) or (b), only the portion of the communication necessary for the application of the exception for nondisclosure may be admitted. The admission of a particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose. 20 | P a g e Prepared by: Alexis R. Alcantara, MSCJ Non-Reporting or Communication by Mediator A mediator may not make a report, assessment, evaluation, recommendation, finding or other communication regarding a mediation to a court or agency or other authority that may make a ruling on a dispute that is the subject of a mediation, except:  to state that the mediation occurred or has terminated, or where a settlement was reached; or  as permitted to be disclosed under the provisions on the Exceptions to the Privilege of Confidentiality of Information. The parties may, by an agreement in writing, stipulate that the settlement agreement shall be sealed and not disclosed to any third party including the court. Such stipulation, however, shall not apply to a proceeding to enforce or set aside the settlement agreement. FEES AND COST OF MEDIATION Fees and Cost of Ad hoc Mediation In ad hoc mediation, the parties are free to make their own arrangement as to mediation cost and fees. In default thereof, the schedule of cost and fees to be approved by the OADR shall be followed. Fees and Cost of Institutional Mediation a. In institutional mediation, rnediation cost shall include the administrative charges of the mediation institution under which the parties have agreed to be bound, mediator's fees and associated expenses, if any. In default of agreement of the parties as to the amount and manner of payment of mediation's cost and fees, the same shall be determined in accordance with the applicable internal rules of the mediation service providers under whose rules the mediation is conducted. b. A mediation service provider may determine such mediation fee as is reasonable taking into consideration the following factors, among others:  The complexity of the case;  The number of hours spent in mediation; and  The training, experience and stature of mediators. INTERNATIONAL COMMERCIAL ARBITRATION Scope of Application The rule applies to international commercial arbitration, subject to any agreement in force between the Philippines and other state or states and only if the place or seat of arbitration is the Philippines and in default of any agreement of the parties on the applicable rules and shall not affect any other law of the Philippines by virtue of which certain disputes may not be 21 | P a g e Prepared by: Alexis R. Alcantara, MSCJ submitted to arbitration or may be submitted to arbitration only according to provisions other than those of the ADR Act. Rules of Interpretation a. International commercial arbitration shall be governed by the Model Law on International Commercial Arbitration. b. In interpreting the rule, regard shall be had to the international origin of the Model Law and to the need for uniformity in its interpretation. Resort may be made to the travaux preparatories and the Report of the Secretary-General of the United Nations Commission on International Trade Law dated March 1985 entitled, "International Commercial Arbitration: Analytical Commentary on Draft Text identified by reference number A/CN. 9/264" c. Moreover, in interpreting the rule, the court shall have due regard to the policy of the law in favor of arbitration and the policy of the Philippines to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangement to resolve their dispute. d. Where a provision of the rule, except the those applicable to the substance of the dispute, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party, including an institution, to make that determination. e. Where a provision of these rule refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement. Receipt of Written Communications a. Unless otherwise agreed by the parties:  any written communication is deemed to have been received if it is delivered to the addressee personally or at his/her place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it;  the communication is deemed to have been received on the day it is so delivered. b. The provisions of the Rule do not apply to communications in court proceedings, which shall be governed by the Rules of Court. Waiver of Right to Object A party who knows that any provision of the rule from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the objections for such non-compliance without undue delay or if a time limit is provided therefor, within such period of time, shall be deemed to have waived the right to object. 22 | P a g e Prepared by: Alexis R. Alcantara, MSCJ Extent of Court Intervention In matters governed by the rule, no court shal intervene except where so provided in the ADR Act. Resort to Philippine courts for matters within the scope of the ADR Act shall be governed by the Special ADR Rules. ARBITRATION AGREEMENT Definition and Form of Arbitration Agreement The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract. Arbitration Agreement and Substantive Claim Before Court a. A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if at least one party so requests not later than the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. b. A court before which an action is brought in a matter which is the subiect of an arbitration agreement shall, if at least one party so requests not later than the pre-trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. c. Where the action is commenced by or against multiple parties, one or more of whom are parties to an arbitration agreement, the court shall refer to arbitration those parties who are bound by the arbitration agreement although the civil action may continue as to those who are not bound by such arbitration agreement. Composition of Arbitral Tribunal Number of Arbitrators The parties are free to determine the number of arbitrators. Failing such determination, the number of arbitrators shall be three (3). Appointment of Arbitrators a. No person shall be precluded by reason of his/her nationality from acting as an arbitrator, unless otherwise agreed by the parties. b. The parties are free to agree on a procedure of appointing the arbitrator or arbitrators. 23 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  c. Failing such agreement:  in an arbitration with three (3) arbitrators each party shall appoint one arbitrator, and the two (2) arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty (30) days of receipt of a request to do so from the other party, or if the two (2) arbitrators fail to agree on the third arbitrator within thirty (30) days of their appointment, the appointment shall be made, upon request of a party, by the appointing authority;  in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he/she shall be appointed, upon request of a party, by the appointing authority. d. Where, under an appointment procedure agreed upon by the parties,  a party fails to act as required under such procedure, or  the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or  a third party, including an institution, fails to perform any function entrusted to it under such procedure, any party may request the appointing authority to take the necessary measure to appoint an arbitrator, unless the agreement on the appointment procedure provides other means for securing the appointment. e. A decision on a matter entrusted shall be immediately executory and not be subject to a motion for reconsideration or appeal. The appointing authority shall have in appointing an arbitrator, due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, Grounds for Challenge a. When a person is approached in connection with his/her possible appointment as an arbitrator, he/she shall disclose any circumstance likely to give rise to justifiable doubts as to his/her impartiality or independence. An arbitrator, from the time of his/her appointment and throughout the arbitral proceedings shall, without delay, disclose any such circumstance to the parties unless they have already been informed of them by him/her, b. An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his/her impartiality or independence, or if he/she does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him/her, or in whose appointment he/she has participated, only for reasons of which he/she becomes aware after the appointment has been made. Challenge Procedure a. The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of the rule. 24 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  b. Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen (15) days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance, send the arbitral tribunal the reasons for the challenge to the arbitral tribunal. Unless the challenged withdraws from his/her office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. c. If a challenge under any procedure agreed upon by the parties is not successful, the challenging party may request the appointing authority, within thirty (30) days after having received notice of the decision rejecting the challenge, to decide on the challenge, which decision shall be immediately executory and not subject to motion for reconsideration or appeal. While such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award. Failure or Impossibility to Act a. If an arbitrator becomes dejure or de facto unable to perform his/her functions or for other reasons fails to act without undue delay, his/her mandate terminates if he/she withdraws from his/her office or if the parties agree on the termination, Otherwise, if a controversy remains concerning any of these grounds, any party may request the appointing authority to decide on the termination of the mandate, which decision shall be immediately executory and not subject to motion for reconsideration or appeal. b. If an arbitrator withdraws from his/her office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground. Appointment of Substitute Arbitrator Where the mandate of an arbitrator terminates the provisions on Challenge Procedure and Failure or Impossibility to Act or because of his/her withdrawal from office for any other reason or because of the revocation of his/her mandate by agreement of the parties or in any other case of termination of his/her mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. Jurisdiction of Arbitral Tribunal Competence of Arbitral Tribunal to Rule on its Jurisdiction a. The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement or any condition precedent to the filing of a request for arbitration. For that purpose, an arbitration clause, which forms part of a contract, shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. b. A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defense (i.e., in an Answer or Motion to Dismiss). A party is not precluded from raising such plea by the fact that he/she has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of authority shall be raised as soon as the matter alleged to be 25 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  beyond the scope of its authority is raised during the arbitral proceedings The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified. c. The arbitral tribunal may rule on a plea either as a preliminary question or in an award the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, Within thirty (30) days after having received notice of that ruling, the Regional Trial Court to decide the matter, which decision shall be immediately executory and not subject to motion for reconsideration or appeal. While such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. Power of Arbitral Tribunal to Order Interim Measures a. Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. Such interim measures may include, but shall not be limited to, preliminary injunction directed against a party, appointment of receivers, or detention, preservation, inspection of property that is the subject of the dispute in arbitration. b. After constitution of the arbitral tribunal, and during arbitral proceedings, a request for interim measures of protection, or modification thereof shall be made with the arbitral tribunal. The arbitral tribunal is deemed constituted when the sole arbitrator or the third arbitrator, who has been nominated, has accepted the nomination and written communication of said nomination and acceptance has been received by the party making the request. c. The following rules on interim or provisional relief shall be observed:  Any party may request that interim or provisional relief be granted against the adverse party.  Such relief may be granted: o To prevent irreparable loss or injury. o To provide security for the performance of an obligation. o To produce or preserve evidence. o To compel any other appropriate acts or omissions.  The order granting provisional relief may be conditioned upon the provision of security or any act or omission specified in the order.  Interim or provisional relief is requested by written application transmitted by reasonable means to the arbitral tribunal and the party against whom relief is sought, describing in appropriate details of the precise relief, the party against whom the relief is requested, the ground for the relief, and the evidence supporting the request. 26 | P a g e Prepared by: Alexis R. Alcantara, MSCJ   The order either granting or denying an application for interim relief shall be binding upon the parties.  Either party may apply with the count for assistance in implementing or enforcing an interim measure ordered by an arbitral tribunal.  A party who does nes, resulting fith the order shal be liable for all damages, resulting from noncompliance, including all expenses, and reasonable attorney's fees, paid in obtaining the order's judicial enforcement. Conduct of Arbitral Proceedings Equal Treatment of Parties The parties shall be treated with equality and each party shall be given a full opportunity of presenting his/her case. Determination of Rules of Procedure a. The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. b. Failing such agreement, the arbitral tribunal may, conduct the arbitration in such manner as it considers appropriate. Unless the arbitral tribunal considers it inappropriate, the UNCITRAL Arbitration Rules adopted by the UNCITRAL on 28 April 1976 and the UN General Assembly on 15 December 1976 shall apply subject to the following clarification: All references to the "Secretary General of the Permanent Court of Arbitration at the Hague" shall be deemed to refer to the appointing authority. c. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence. Place of Arbitration a. The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be in Metro Manila unless the arbitral tribunal, having regard to the circumstances of the case, including the convenience of the parties, shall decide on a different place of arbitration. b. Notwithstanding the rule stated in paragraph (a), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witness, experts or the parties, or for inspection of goods, other property or documents. Commencement of Arbitral Proceedings Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Language 27 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  a. The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the language to be used shall be English. This agreement, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal. b. The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal in accordance with paragraph (a). Statements of Claim and Defense a. Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his/her/its claim, the points at issue and the relief or remedy sought, and the respondent shall state his/her/its defense in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements, all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. b. Unless otherwise agreed by the parties, either party may amend or supplement his/her claim or defense during the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it. Hearing and Written Proceedings a. Subject to any contrary agreement by the parties the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the Parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so, requested by a party. b. The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents. c. All statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party. Also, an expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties. Default of a Party Unless otherwise agreed by the parties, if, without showing sufficient cause,  the claimant fails to communicate his statement of claim in accordance with the provisions of Statement of Claim and Defense, the arbitral tribunal shall terminate the proceedings;  the respondent fails to communicate his/her/its statement of defense in accordance with the provisions of Statement of Claim and Defense, the arbitral tribunal shall continue the 28 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  proceedings without treating such failure in itself as an admission of the claimant's allegations;  any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it. Expert Appointed by the Arbitral Tribunal Unless otherwise agreed by the parties, the arbitral tribunal,  may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; or  may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his/her inspection. Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his/her written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue. Court Assistance in Taking Evidence The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a court of the Philippines assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence. The arbitral tribunal shall have the power to require any person to attend a hearing as a witness. The tribunal shall have the power to subpoena witnesses and documents when the relevancy of the testimony and the materiality thereof has been demonstrated to it. The arbitral tribunal may also require the retirement of any witness during the testimony of any other witness. A party may bring a petition under this Section before the court in accordance with the Rules of Court or the Special ADR Rules. Rules Applicable to the Substance of Dispute a. The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given state shall be construed, unless otherwise expressed, as directly referring to the substantive law of that state and not to its conflict of laws rules. b. Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules, which it considers applicable. c. The arbitral tribunal shall decide ex aquo et bono or as amiable compositeur only if the parties have expressly authorized it to do so. 29 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  d. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. Decision-Making by Panel of Arbitrators In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so, authorized by the parties or all members of the arbitral tribunal. Settlement If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. An award on agreed terms shall be made in accordance with the provisions of Form and Contents of Award and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case. Form and Contents of Award  The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated.  The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under the provisions of Place of Arbitration.  The award shall state its date and the place arbitration. The award shall be deemed to ha been made at that place.  After the award is made, a copy signed by the arbitrators shall be delivered to each party. Termination of Proceedings The arbitral proceedings are terminated by final award or by an order of the arbitral tribunal. The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when:  The claimant withdraws his/her/its claim, unless the respondent objects thereto and the arbitral tribunal recognized a legitimate interest on his/her/its part in obtaining a final settlement of the dispute;  The parties agree on the termination of the proceedings;  The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. 30 | P a g e Prepared by: Alexis R. Alcantara, MSCJ Correction and Interpretation of Award, Additional Award a. Within thirty (30) days from receipt of the award, unless another period of time has been agreed upon by the parties:  A party may, with notice to the other party, request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature;  A party may, if so, agreed by the parties and with notice to the other party, request the arbitral tribunal to give an interpretation of a specific point or part of the award. b. If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within (30) days from receipt of the request. The interpretation shall form part of the award. c. The arbitral tribunal may correct any error of the type on its own initiative within thirty 30) days from the date of the award. d. Unless otherwise agreed by the parties, a party may, with notice to the other party, request, within thirty (30) days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within sixty (60) days. e. The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation or an additional award. f. The provisions of Form and Contents of Award shall apply to a correction or interpretation of the award or to an additional award. AMICABLE SETTLEMENT OF DISPUTES Preliminaries Katarungang Pambarangay, or the Barangay Justice System is a local justice system in the Philippines. It is operated by the smallest of the local government units, the barangay, and is overseen by the barangay captain, the highest elected official of the barangay and its executive. The barangay captain sits on the Lupong Tagapamayapa along with other barangay residents, which is the committee that decides disputes and other matters. They do not constitute a court as they do not have judicial powers. The system exists to help decongest the regular courts and works mostly as "alternative, community-based mechanism for dispute resolution of conflicts, also described as a "compulsory mediation process at the village level." Throughout the Philippines the Barangay Justice Systems handles thousands of cases a year. Since officials have more flexibility in decision-making including from complex evidence rules, and receive some resources from government, the courts are more numerous and accessible than other courts and therefore the courts are able to hear more cases and to respond more immediately. 31 | P a g e Prepared by: Alexis R. Alcantara, MSCJ History There has long been a traditional, local system resolving disputes. Presidential Decree 1508 talks an unofficial "time-honored tradition of amicably settling disputes among family and barangay members at the barangay level without judicial resources." Alfredo Flores Tadiar was the principal author of Presidential Decree 1508, The Katarungang Pambarangay Law, and he also wrote its implementing rules, requiring prior conciliation as a condition for judicial recourse. For 12 years (1980-1992), he was a member of the Committee of Consultants, Bureau of Local Government Supervision, which oversaw the nationwide operations of the Katarungang Pambarangay Law. Under the decree, the body was known as Lupong Tagapayapa. This decree was replaced by the Local Government Code of 1991. The Katarungang Pambarangay share characteristics with similar traditional, hybrid courts in other countries such as the Solomon Islands, Papua New Guinea, Nigeria and South Africa, among others. Such courts emerged during colonial periods as Western imperial powers introduced western legal systems. The Western legal systems were usually appliea to we interers while the local dispute resolution systems were integrated into the Western system in a variety of ways including incorporation of local decision makers into the government in some way. After independence, many states faced the same problems as their former rulers, especially "limited geographical reach of state institutions, Western modeled institutions often divorced from community structures and expectations, and resource constraints in the justice sector." Hybrid courts became a "middle ground for supporting community decision-making while simultaneously expanding the authority and reach of the state." Besides "hybrid courts", other authors have described the system as a "Non-State Justice System". Overview on the Operations, Rules and Procedures The Lupong Tagapamayapa is the body that comprises the barangay justice system and on it sit the barangay captain and 10 to 20 members. The body is normally constituted every three years and holds office until a new body is constituted in the third year. They receive no compensation except honoraria, allowances and other emoluments as authorized by law or barangay, municipal or city ordinance. Almost all civil disputes and many crimes with potential prison sentences of one year or less or fines 5,000 or less. Philippine pesos are subjected to the system. In barangays where a majority of members belong to an indigenous people of the Philippines, traditional dispute mechanisms such as a council of elders may replace the barangay judicial system. Upon receipt of the complaint, the chairman to the committee, most often the barangay captain, shall the next working day inform the parties of a meeting for mediation. If after 15 days for the first meeting, the mediation is not successful then more formal process involving the pangkat or body must be followed. There is another 15-day period to resolve the dispute through this more formal process, extendable by the pangkat for yet another 15-day period. If not, settlement has been reached, then a case can be filed in the regular judicial system of the Philippines. THE KATARUNGANG PAMBARANGAY 32 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  (Presidential Decree No. 1508 repealed by R.A. 7160) The "Katarungang Pambarangay" or Barangay Justice System is a community-based dispute settlement mechanism that is administered by the basic political unit of the country, the barangay. It covers disputes between members of the same community (generally, same city/municipality) and involves the Punong Barangay and other members of the communities (the Lupon members) as intermediaries (mediators, conciliators, and, sometimes, arbitrators). When PD 1508 first decreed the setting up of the Barangay Justice System, the law had the following objectives: a. To promote the speedy administration of justice b. To minimize the indiscriminate filing of cases in courts c. To minimize the congestion of court dockets and thereby enhance the quality of justice dispensed by the courts d. To perpetuate and recognize the time-honored tradition of amicably settling disputes at the community level Purposes of "Katarungang Pambarangay" a. Introduced in 1978 b. System of justice c. For resolution of local level dispute d. Provide justice to the poor e. Do not judge, but assist f. Provides speedy disposition of cases g. Alternative to litigation h. Peaceful and friendly settlement i. Interest of public peace and order j. Perpetuate tradition and culture Simply put, the BJS provides a friendly, inexpensive, and speedy forum for the settlement of disputes where the parties can freely explore options for amicably resolving their disputes without resorting to the courts. What are the Crimes that Fall within the Authority of the Lupon? 33 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  1. Alarms and Scandals (Art. 155, Revised Penal Code (RPC); 2. False medical certificates; false certificates of merit of service if committed by private person (Article 174, last par., RPC); 3. Using false certificates (Article 175, RPC); 4. Using fictitious and concealing true name (Article 178, RPC); 5. False testimony against a defendant in criminal cases (Article 180, No. 4, RPC); 6. Physical injuries inflicted in a tumultuous affray when injuries inflicted are of a less serious nature (Article 252, 2nd par., RPC); 7. Less Serious Physical Injuries (Article 265, RPC); 8. Slight Physical Injuries (Article 266, RPC); 9. Kidnapping and failure to return a minor committed by a parent (Article 270 in relation to the last par. of Article 271, RPC); 10. Inducing a minor to abandon his home (Article 271, 2nd par. RPC); 11. Abandonment of persons in danger and abandonment of one's own victim (Article 275, RPC) 12. Abandoning a minor (Article 276, RPC); 13. Abandonment of minor by person entrusted with his custody; indifference of parents (Article 277, RPC); 14. Qualified Trespass To Dwelling (Article 280, RPC); 15. Other forms of Trespass (Article 281, RPC); 16. Grave Threat if the threat was not subject to condition (Article 282, No. 2, RPC); 17. Light threats (Article 283, RPC); 18. Other Light threats (Article 285, RPC); 19. Grave Coercions (Article 286, RPC); 20. Light Coercions (Article 287, RPC); 21. Unjust Vexation (Article 287, last paragraph, RPC); 22. Other similar coercions or compulsory purchase of merchandise and payment of wages by means of tokens (Article 288, RPC); 34 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  23. Formation, maintenance and prohibition of combination of capital or labor through violence or threats (Article 289, RPC); 24. Discovering secrets through seizure of correspondence without revealing such secrets (Article 290, 2nd paragraph, RPC); 25. Revealing secrets with abuse of office (Article 291, RPC); 26. Theft if value of stolen goods does not exceed P50.00 (Article 309, nos. 5, 6, 7 and 8, RPC); 27. Altering boundaries or landmarks (Article 313, RP); 28. Swindling or estafa if the amount of the fraud does not exceed P200.00 (Article 315, 4th paragraph, RPC); 29. Other forms of swindling (Article 316, RPC); 30. Swindling a minor (Article 317, RPC); 31. Other deceits (Article 318, RPC); 32. Removal, sale or pledge of mortgaged property (Article 319, RPC); 33. Special cases of malicious mischief where the value of the damaged property does not exceed one thousand pesos (Article 328, Nos. 2 and 3, RPC); 34. Other mischief (Article 329, RPC); 35. Destroying or damaging useful or ornamental painting of a public nature (Article 331, 2nd paragraph, RPC); 36. Simple seduction (Article 338, RPC); 37. Acts of lasciviousness with the consent of the offended party 38. Premature marriage (Article 351, RPC); 39. Threatening to publish and offer to prevent such publication for a compensation or blackmail (Article 356, RPC); 40. Publication of facts connected with the private life of a person (Article 357, RPC) 41. Slight Oral Defamation (Article 358, RPC); 42. Slight Slander by Deed (Article 359, RPC); 43. Incriminating Innocent Person (Article 363, RPC); 44. Intriguing against person (Article 364, RPC); 35 | P a g e Prepared by: Alexis R. Alcantara, MSCJ  45. Reckless imprudence had it been intentional would constitute a less grave felony or a light felony (Article 365, RPC); 46. Simple Imprudence (Article 365, RPC); and 47. Violation of BP 22. Concept of Barangay and Lupong Tagapamayapa Barangay refers not only to barrios which were declared barangays by virtue of Presidential Decree No. 557 but also to barangays otherwise known as citizens assemblies pursuant to Presidential Decree No. 86. Barangay Captain refers to the Barangay Captains of the barrios which declared barangay by virtue Of Presidential Decree No. 557 and to the Chairmen Of barangays otherwise known as citizens assemblies pursuant to Presidential Decree No. 86. The Lupong Tagapamayapa - The Lupong Tagapamayapa shall be composed of the Punong barangay as Chairman and ten (10) to twenty (20) members. The lupon shall be constituted every three (3) years. Any person actually residing or working in the barangay, not otherwise expressly disqualified by law, and possessing integrity, impartiality, independence of mind, sense of fairness, and reputation for probity, may be appointed as member of the upon. A notice to constitute the lupon, which shall include the names of proposed members who have expressed their willingness to serve, shall be prepared by the punons barangay within the first fifteen (15) days from the start of his term of office. Such notice shall be posted in three (3) conspicuous places in the barangay continuously for a period of not less than three (3) weeks; The Punong barangay, taking into consideration any opposition to the proposed appointment or any recommendations for appointment as may have been made within the period of posting, shall within ten (10) days thereafter, appoint as members