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What is Alternative Dispute Resolution (ADR)?

collaborative approach to divorce aims to remove the win-lose mentality


so common in these cases. Both spouses are still represented by their own
ADR is a term used to describe several different methods of resolving attorneys, but family counselors, financial professionals, and others are
legal disputes without going to court. The rising cost of litigation is brought into the negotiations as well. In a series of group sessions, the
making traditional lawsuits impractical for many individuals and parties discuss and reach agreement on issues such as property division,
businesses. At the same time, civil courts face backlogged dockets, alimony, and child custody and visitation.
resulting in delays of a year or more for private parties to have their cases
heard by a jury. New types of proceedings have been developed in ADR can also take the form of an evaluation and mediation-type
response, and they are proving beneficial, saving time and money for proceeding overseen by a legal professional with specialized training in
everyone involved. These include arbitration, mediation, and additional the subject of the dispute. For example, parties in a construction defect
kinds of ADR designed for specific cases and subject matters. lawsuit may agree to present their evidence to a neutral individual who is
both an attorney and an architect. This person will know more about
Binding and Non-binding Arbitration proper construction techniques than a judge or jury, and may be able to
help the parties resolve their differences at a far lower cost than traditional
Arbitration is much like a trial, in that the parties can call witnesses, litigation.
present evidence, and argue the merits of their case to a neutral decision
maker. In many jurisdictions, civil litigants whose claims do not exceed a Attorney Representation in ADR Cases
certain dollar amount may be ordered to attend arbitration by the court, in
an effort to keep the courts docket clear for more substantial lawsuits. If you are looking to cut short the litigation process, ADR may be the
Local court rules may also allow litigants to elect for their case to be sent answer. But regardless of the type of ADR proceeding you are
to arbitration regardless of the dollar amount at stake. In doing so, the contemplating, you need independent legal advice to protect your
parties can agree that the results of the arbitration will be binding or non- interests. Contact an attorney to learn more about the benefits of resolving
binding. In non-binding arbitration, the loser can afterwards request a new your case out of the courtroom.
trial in the civil court.
What is ADR?
The court will appoint a well-established attorney in the local area to
perform the duties of arbitrator. This person will act as a judge at the Alternative Dispute Resolution (ADR) is a general term encompassing
arbitration hearing, listening to the evidence and rendering a decision. various techniques for resolving conflict outside of court using a neutral
Parties may be given some amount of say in the arbitrator selection third party. When strategically applied in the context of enforcement
process. At a minimum, they will be allowed to strike potential arbitrators negotiations, ADR has proven to be a useful tool in overcoming impasse,
with whom they have had prior dealings. improving the efficiency of difficult negotiations, and achieving durable
settlements. Outside of the enforcement context, ADR has been
Once a case is sent to arbitration, a conference will be held either by effectively used to enhance public involvement in environmental
telephone, or in person at the arbitrators office. Much like a pre-trial decisions, to facilitate technical inquiries and information exchanges, and
conference in civil court, this is the opportunity for the parties to give the to identify creative solutions to daunting problems
arbitrator an overview of what the case is about, and to discuss any
evidentiary issues in advance of the arbitration hearing. On the day of the What types of ADR might be used in environmental matters?
hearing, the parties will meet in a conference room at the arbitrators
office or in an empty room at the courthouse. Each side will present its Mediation
case over the course of several hours. Afterward, the arbitrator can render
a decision immediately, or take the matter under advisement and issue a In mediation, a neutral mediator with no decision-making
written decision in the following weeks. authority helps parties clarify issues, explore settlement options, and
evaluate how best to advance their respective interests. Mediation is the
Using Mediation to Reach a Settlement ADR technique most commonly used in regulatory and Superfund
enforcement cases and, in this context, is generally a confidential process.
Mediation is a much different type of ADR proceeding. Unlike
arbitration, it does not involve an adversarial hearing, and there is no Facilitation
decision-making official present. Instead, the parties involved in the
dispute are brought together in one location, and a neutral facilitator acts Facilitation involves the use of a neutral to help a group of
as a go-between. The job of the mediator is to help the parties reach a people conduct productive discussions about complex, sensitive, or
voluntary settlement of the case. For litigants and attorneys who have potentially controversial issues. The focus of the facilitators role is to
become antagonistic toward each other over the course of the litigation, or help people communicate effectively with each other. Facilitation may be
who have unrealistic expectations concerning the outcome of the case, a significant component of a mediation process, especially where a large
mediation may be their only chance to avoid having to go to trial. number of parties are involved. Facilitation is also often used, in the
absence of an active dispute, when people come together for some type of
A typical mediation begins with everyone meeting in the same room, and exchange, such as to share information, to air divergent views, to generate
each party giving a short presentation to the mediator. The purpose of the options, to establish priorities, or to offer input into a decision. Facilitation
presentation is to give an overview of the facts and impress upon the can be useful in otherwise unassisted enforcement negotiations to help
mediator the relative strength of that partys case. The parties then split up reduce confusion and conduct productive and clarifying discussions.
into two rooms. The mediator goes back and forth between the rooms, Depending upon the context, facilitative processes may or may not be
personally relaying the parties settlement offers and responses. Parties confidential.
can share information with the mediator in confidence, and the mediator
will give the parties his or her own thoughts about the case. In the end, the Convening
goal is for the parties to agree on how the case should be resolved. Convening is the use of a neutral to help parties determine
whether and how to pursue negotiation; the convener may help the parties
Collaborative Divorce and Specialist Evaluations identify issues, identify necessary participants, determine whether some
type of neutral assistance would be useful, and if so, select a mutually
Divorce cases have the potential to turn into bitterly contested ordeals. A
acceptable neutral or team of neutrals. Individual conversations with a profession in recent years. In fact, some courts now require some parties
neutral convener are generally confidential. to resort to ADR of some type, usually mediation, before permitting the
parties' cases to be tried (indeed the European Mediation Directive
Arbitration (2008) expressly contemplates so-called "compulsory" mediation; this
At the other end of the spectrum from mediation is arbitration, means that attendance is compulsory, not that settlement must be reached
in which the neutral evaluates the merits of the case and issues a decision through mediation). The rising popularity of ADR can be explained by the
which may be either binding or non-binding (advisory). The arbitrator increasing caseload of traditional courts, the perception that ADR imposes
functions essentially as a judge. fewer costs than litigation, a preference for confidentiality, and the desire
of some parties to have greater control over the selection of the individual
Spectrum of Dispute Resolution Methods or individuals who will decide their dispute. Some of the senior judiciary
in certain jurisdictions (of which England and Wales is one) are strongly
Unassisted Assisted Negotiation Adjudication in favour of this (ADR) use of mediation to settle disputes.
Negotiation
Process Outcome ADR is generally classified into at least four
Assistance Prediction types: negotiation, mediation, collaborative law, and arbitration.
(Sometimes a fifth type, conciliation, is included as well, but for present
Negotiation: Parti Convening: Th Early Neutral Court: Parties
purposes it can be regarded as a form of mediation. See conciliation for
es and their e use of a Evaluation: Th litigate their
further details.) ADR can be used alongside existing legal systems such as
attorneys attempt neutral to help e use of a case in court,
sharia courts within common law jurisdictions such as the UK. ADR
to resolve a parties neutral presenting
traditions vary somewhat by country and culture. There are significant
dispute through determine evaluator to evidence and
common elements which justify a main topic, and each country or region's
direct discussions whether and give opinions arguments to a
difference should be delegated to sub-pages.
with one another. how to pursue on each partys judge and, as
negotiations. case and the appropriate, a
Alternative Dispute Resolution is of two historic types. First,
likely court jury. The court
methods for resolving disputes outside of the official judicial mechanisms.
Facilitation: T outcome. issues a binding
Second, informal methods attached to or pendant to official judicial
he uses of a decision subject
mechanisms. There are in addition free-standing and or independent
neutral to help a Fact to any rights of
methods, such as mediation programs and ombuds offices within
group of people Finding: The appeal.
organizations. The methods are similar, whether or not they are pendant,
conduct use of a neutral
and generally use similar tool or skill sets, which are basically sub-sets of
productive to investigate, Administrative
the skills of negotiation.
discussions analyze, and Court: Parties
about complex report to parties try their case
ADR includes informal tribunals, informal mediative processes,
or potentially regarding before an
formal tribunals and formal mediative processes. The classic formal
controversial factual agency
tribunal forms of ADR are arbitration (both binding and advisory or non-
issues. questions. administrative
binding) and private judges (either sitting alone, on panels or over
law judge for a
summary jury trials). The classic formal mediative process is referral for
Mediation: A Non-binding binding
mediation before a court appointed mediator or mediation panel.
voluntary Arbitration: T decision subject
Structured transformative mediation as used by the U.S. Postal Service is
process he use of a to any rights of
a formal process. Classic informal methods include social processes,
involving the neutral to appeal.
referrals to non-formal authorities (such as a respected member of a trade
use of a neutral review
or social group) and intercession. The major differences between formal
to help parties evidence, hear Binding
and informal processes are (a) pendency to a court procedure and (b) the
reach arguments, and Arbitration: T
possession or lack of a formal structure for the application of the
agreement by issue a non- he use of a
procedure.
clarifying binding neutral to
issues, decision. review
For example, freeform negotiation is merely the use of the tools
exploring evidence, hear
without any process. Negotiation within a labor arbitration setting is the
settlement Summary Jury arguments, and
use of the tools within a highly formalized and controlled setting. Calling
options, and Trial: Parties issue a binding
upon an organizational ombudsman's office is never, by itself, a formal
evaluating how present their decision.
procedure. (Calling upon an organizational ombudsman is always
best to advance case to a jury
voluntary; by the International Ombudsman Association Standards of
their respective for a non-
Practice, no one can be compelled to use an ombuds office.)
interests. binding
Organizational ombuds offices refer people to all conflict management
decision.
options in the organization: formal and informal, rights-based and interest-
Non-Binding Outcome Binding based. But, in addition, in part because they have no decision-making
Outcome authority, ombuds offices can, themselves, offer a wide spectrum of
informal options.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
This spectrum is often overlooked in contemporary discussions of
(also known as external dispute resolution in some countries, ADR. ADR often refers to external conflict management options that
such as Australia) includes dispute resolution processes and techniques are important, but used only occasionally. An organizational ombuds
that act as a means for disagreeing parties to come to an agreement short office typically offers many internal options that are used in hundreds of
of litigation. It is a collective term for the ways that parties can settle cases a year. These options include:
disputes, with (or without) the help of a third party. Despite historic delivering respect, for example, affirming the feelings of a visitor,
resistance to ADR by many popular parties and their advocates, ADR has while staying explicitly neutral on the facts of a case,
gained widespread acceptance among both the general public and the legal active listening, serving as a sounding board,
providing and explaining information, one-on-one, for example, experts. No one imposes a resolution on the parties. However, the
about policies and rules, and about the context of a concern, process is a formalized process that is part of the litigation and court
receiving vital information, one-on-one, for example, from those system. Rather than being an Alternative Resolution methodology it
reporting unacceptable or illegal behavior, is a litigation variant that happens to rely on ADR like attitudes and
reframing issues, processes.
helping to develop and evaluate new options for the issues at hand,
4. In arbitration, participation is typically voluntary, and there is a third
offering the option of referrals to other resources, to key people in party who, as a private judge, imposes a resolution. Arbitrations often
the relevant department, and to managers and compliance offices, occur because parties to contracts agree that any future dispute
helping people help themselves to use a direct approach, for concerning the agreement will be resolved by arbitration. This is
example, helping people collect and analyze their own information, known as a 'Scott Avery Clause'. In recent years, the enforceability of
helping people to draft a letter about their issues, coaching and role- arbitration clauses, particularly in the context of consumer
playing, agreements (e.g., credit card agreements), has drawn scrutiny from
offering shuttle diplomacy, for example, helping employees and courts. Although parties may appeal arbitration outcomes to courts,
managers to think through proposals that may resolve a dispute, such appeals face an exacting standard of review.
facilitating discussions,
offering mediation inside the organization, Beyond the basic types of alternative dispute resolutions there are other
looking into a problem informally, different forms of ADR:
facilitating a generic approach to an individual problem, for example Case evaluation: a non-binding process in which parties present the
instigating or offering training on a given issue, finding ways to facts and the issues to a neutral case evaluator who advises the
promulgate an existing policy, parties on the strengths and weaknesses of their respective positions,
identifying and communicating throughout the organization about and assesses how the dispute is likely to be decided by a jury or other
new issues, adjudicator.
identifying and communicating about patterns of issues, Early neutral evaluation: a process that takes place soon after a case
has been filed in court. The case is referred to an expert who is asked
working for systems change, for example, suggesting new policies,
to provide a balanced and neutral evaluation of the dispute. The
or procedures,
evaluation of the expert can assist the parties in assessing their case
Following up with a visitor, following up on a system change and may influence them towards a settlement.
recommendation. (See Rowe, Mary, Informality The Fourth
Family group conference: a meeting between members of a family
Standard of Practice, in JIOA, vol 5, no 1, (2012) pp 817.)
and members of their extended related group. At this meeting (or
often a series of meetings) the family becomes involved in learning
Informal referral to a co-worker known to help people work out
skills for interaction and in making a plan to stop the abuse or other
issues is an informal procedure. Co-worker interventions are usually
ill-treatment between its members.
informal. Conceptualizing ADR in this way makes it easy to avoid
confusing tools and methods (does negotiation once a lawsuit is filed Neutral fact-finding: a process where a neutral third party, selected
cease to be ADR? If it is a tool, then the question is the wrong question) either by the disputing parties or by the court, investigates an issue
(is mediation ADR unless a court orders it? If you look at court orders and and reports or testifies in court. The neutral fact-finding process is
similar things as formalism, then the answer is clear: court annexed particularly useful for resolving complex scientific and factual
mediation is merely a formal ADR process). disputes.
Ombuds: third party selected by an institution for example a
Dividing lines in ADR processes are often provider driven rather university, hospital, corporation or government agency to deal with
than consumer driven. Educated consumers will often choose to use many complaints by employees, clients or constituents. An organizational
different options depending on the needs and circumstances that they face. ombudsman works within the institution to look into complaints
Finally, it is important to realize that conflict resolution is one major goal independently and impartially.
of all the ADR processes. If a process leads to resolution, it is a dispute
resolution process.[4] "Alternative" dispute resolution is usually considered to be alternative
The salient features of each type are as follows: to litigation. It also can be used as a colloquialism for allowing a dispute
1. In negotiation, participation is voluntary and there is no third party to drop or as an alternative to violence. In recent years there has been
who facilitates the resolution process or imposes a resolution. (NB more discussion about taking a systems approach in order to offer
a third party like a chaplain or organizational ombudsperson or social different kinds of options to people who are in conflict, and to foster
worker or a skilled friend may be coaching one or both of the parties "appropriate" dispute resolution. That is, some cases and some
behind the scene, a process called "Helping People Help complaints in fact ought to go to formal grievance or to court or to the
Themselves" see Helping People Help Themselves, in Negotiation police or to a compliance officer or to a government IG. Other conflicts
Journal July 1990, pp. 239248, which includes a section on helping could be settled by the parties if they had enough support and coaching,
someone draft a letter to someone who is perceived to have wronged and yet other cases need mediation or arbitration. Thus "alternative"
them.) dispute resolution usually means a method that is not the courts.
"Appropriate" dispute resolution considers all the possible responsible
2. In mediation, there is a third party, a mediator, who facilitates the options for conflict resolution that are relevant for a given issue.
resolution process (and may even suggest a resolution, typically
known as a "mediator's proposal"), but does not impose a resolution ADR can increasingly be conducted online, which is known
on the parties. In some countries (for example, the United Kingdom), as online dispute resolution (ODR, which is mostly a buzzword and an
ADR is synonymous with what is generally referred to attempt to create a distinctive product). It should be noted, however, that
as mediation in other countries. ODR services can be provided by government entities, and as such may
form part of the litigation process. Moreover, they can be provided on a
3. In collaborative law or collaborative divorce, each party has an global scale, where no effective domestic remedies are available to
attorney who facilitates the resolution process within specifically disputing parties, as in the case of the UDRP and domain name disputes.
contracted terms. The parties reach agreement with support of the In this respect, ODR might not satisfy the "alternative" element of ADR.
attorneys (who are trained in the process) and mutually-agreed
BENEFITS process is similar to Mediation. However, in India, Mediation is different
from Conciliation and is a completely informal type of ADR mechanism.
ADR has been increasingly used internationally, both alongside and
integrated formally into legal systems, in order to capitalize on the typical ALTERNATIVE DISPUTE RESOLUTION
advantages of ADR over litigation:
Suitability for multi-party disputes In the late 1980s and early 1990s, many people became increasingly conce
Flexibility of procedure - the process is determined and controlled by rned that the traditional method of resolving legaldisputes in the United St
the parties to the dispute ates, through conventional litigation, had become too expensive, too slow,
Lower costs
and too cumbersome formany civil lawsuits (cases between private parties
). This concern led to the growing use of ways other than litigation toresol
Less complexity ("less is more")
ve disputes. These other methods arecommonly known collectively as alte
Parties choice of neutral third party (and therefore expertise in area rnative dispute resolution.
of dispute) to direct negotiations/adjudicate
Likelihood and speed of settlements As of the early 2000s, ADR techniques were being used more a
Practical solutions tailored to parties interests and needs (not rights nd more, as parties and lawyers and courts realized thatthese techniques co
and wants, as they may perceive them) uld often help them resolve legal disputes quickly and cheaply and more p
Durability of agreements rivately than could conventionallitigation. Moreover, many people preferr
Confidentiality ed ADR approaches because they saw these methods as being more creati
The preservation of relationships and the preservation of reputations ve andmore focused on problem solving than litigation, which has always
been based on an adversarial model.The term alternativedispute resolution
Arbitration is to some degree a misnomer. In reality, fewer than 5 percent of all lawsu
its filed go to trial; the other 95percent are settled or otherwise concluded
The process of arbitration can start only if there exists a valid Arbitration before trial. Thus, it is more accurate to think of litigation as the alternativ
Agreement between the parties prior to the emergence of the dispute. As e andADR as the norm. Despite this fact, the term alternative dispute resol
per Section 7, such an agreement must be in writing. The contract, ution has become such a wellaccepted shorthand forthe vast array of nonlit
regarding which the dispute exists, must either contain an arbitration igation processes that its continued use seems assured.
clause or must refer to a separate document signed by the parties
containing the arbitration agreement. The existence of an arbitration Although certain ADR techniques are well established and frequ
agreement can also be inferred by written correspondence such as letters, ently used-
telex, or telegrams which provide a record of the agreement. An exchange for example, mediation and arbitrationalternative dispute resolution has no
of statement of claim and defense in which existence of an arbitration fixed definition. The term alternative dispute resolution includes a wide ra
agreement is alleged by one party and not denied by other is also nge ofprocesses, many with little in common except that each is an alterna
considered as valid written arbitration agreement. tive to fullblown litigation. Litigants, lawyers, and judgesare constantly ad
Any party to the dispute can start the process of appointing arbitrator and apting existing ADR processes or devising new ones to meet the unique ne
if the other party does not cooperate, the party can approach the office of eds of their legal disputes. Thedefinition of alternative dispute resolution i
Chief Justice for appointment of an arbitrator. There are only two grounds s constantly expanding to include new techniques.ADR techniques have n
upon which a party can challenge the appointment of an arbitrator ot been created to undercut the traditional U.S. court system. Certainly, A
reasonable doubt in the impartiality of the arbitrator and the lack of proper DR options can be used incases where litigation is not the most appropriat
qualification of the arbitrator as required by the arbitration agreement. A e route. However, they can also be used in conjunction with litigation whe
sole arbitrator or a panel of arbitrators so appointed constitutes the nthe parties want to explore other options but also want to remain free to r
Arbitration Tribunal. Except for some interim measures, there is very little eturn to the traditional court process at any point.Of the many ways to reso
scope for judicial intervention in the arbitration process. The arbitration lve a legaldispute other than formal litigation, mediation, arbitration, medi
tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to ationarbitration, Minitrial,early neutral evaluation, and summary jury trial
challenge the jurisdiction of the arbitration tribunal, it can do so only are the most common.
before the tribunal itself. If the tribunal rejects the request, there is little
the party can do except to approach a court after the tribunal makes an Mediationalso known as conciliation
award. Section 34 provides certain grounds upon which a party can appeal Is the fastest growing ADR method. Unlike litigation, mediation
to the principal civil court of original jurisdiction for setting aside the provides a forum inwhich parties can resolve their own disputes, with the
award. The period for filing an appeal for setting aside an award is over, help of a neutral third party.
or if such an appeal is rejected, the award is binding on the parties and is Mediation depends upon the commitment of the disputants to solve their o
considered as a decree of the court. wn problems. The mediator, also known as afacilitator, never imposes a de
Conciliation cision upon the parties. Rather, the mediator's job is to keep the parties tal
king and to helpmove them through the more difficult points of contention
Conciliation is a less formal form of arbitration. This process does not . To do this, the mediator typically takes the parties through fivestages.
require an existence of any prior agreement. Any party can request the First, the mediator gets the parties to agree on procedural matters, such as
other party to appoint a conciliator. One conciliator is preferred but two or by stating that they are participating in themediation voluntarily, setting th
three are also allowed. In case of multiple conciliators, all must act jointly. e time and place for future sessions, and executing a formal confidentiality
If a party rejects an offer to conciliate, there can be no conciliation. Parties agreement. Onevaluable aspect of this stage is that the parties, who often
may submit statements to the conciliator describing the general nature of have been unable to agree on anything, begin a pattern of sayingyes.
the dispute and the points at issue. Each party sends a copy of the Second, the parties exchange initial positions, not by way of lect
statement to the other. The conciliator may request further details, may uring the mediator but in a face-to
ask to meet the parties, or communicate with the parties orally or in face exchange with eachother. Often, this is the first time each party hears
writing. Parties may even submit suggestions for the settlement of the the other's complete and uninterrupted version. The parties may begin tose
dispute to the conciliator. When it appears to the conciliator that elements e that the story has two sides and that it may not be so unreasonable to co
of settlement exist, he may draw up the terms of settlement and send it to mpromise their initial positions.
the parties for their acceptance. If both the parties sign the settlement Third, if the parties have agreed to what is called a caucusing pr
document, it shall be final and binding on both. Note that in USA, this ocedure, the mediator meets with each side separately in aseries of confide
ntial, private meetings and begins exploring settlement alternatives, perha
ps by engaging the parties in some"reality testing" of their initial proposals Liability, massive construction, and antitrust cases. In a mini-
. This process, sometimes called shuttle diplomacy, often uncovers areas o trial, each partypresents its case as in a regular trial, but with the notable di
f flexibilitythat the parties could not see or would have been uncomfortabl fference that the case is "tried" by the parties themselves, andthe presentati
e putting forward officially. ons are dramatically abbreviated.
Fourth, when the gap between the parties begins to close, the me In a minitrial, lawyers and experts present a condensed version of the case
diator may carry offers and counteroffers back and forthbetween them, or t to top management of both parties. Often, aneutral adviser
he parties may elect to return to a joint session to exchange their offers. sometimes an expert in the subject area
Finally, when the parties agree upon the broad terms of a settle sits with management and conducts the hearing. After thesepresentations, t
ment, they formally reaffirm their understanding of thatsettlement, comple op management representatives
te the final details, and sign a settlement agreement. by now more aware of the strengths and weaknesses of each side
try tonegotiate a resolution of the problem. If they are unable to do so, the
Mediation permits the parties to design and retain control of the y often ask for the neutral adviser's best guess as to theprobable outcome o
process at all times and, ideally, eventually strike their ownbargain. Evide f the case. They then resume negotiations.
nce suggests that parties are more willing to comply with their own agree
ments, achieved through mediation,than with adjudicated decisions, impos The key to the success of this approach is the presence of both sides' top o
ed upon them by an outside party such as a judge.An additional advantage fficials and the exchange of information thattakes place during the minitria
is that when the parties reach agreement in mediation, the dispute is over,t l. Too often, prelitigation work has insulated top management from the tru
hey face no appeals,delays, continuing expenses, or unknown risks. The p e strengths andweaknesses of their cases. Mini-
arties can begin to move forward again. Unlike litigation, which focuseson trial presentations allow them to see the dispute as it would appear to an o
the past, mediation looks to the future. Thus, a mediated agreement is part utsider and setthe stage for a cooperative settlement.
icularly valuable to parties who have anongoing relationship, such as a co
mmercial or employment relationship. EARLY-NEUTRAL EVALUATION

Arbitration more closely resembles traditional litigation in that An early neutral evaluation (ENE) is used when one or both part
a neutral third party hears the disputants' arguments andimposes a final an ies to a dispute seek the advice of an experienced individual,usually an att
d binding decision that is enforceable by the courts. The difference is that i orney, concerning the strength of their cases. An objective evaluation by a
n arbitration, the disputantsgenerally agreed to the procedure before the di knowledgeable outsider cansometimes move parties away from unrealistic
spute arose; the disputants mutually decide who will hear their case; and t positions, or at least provide them with more insight into their cases' stren
heproceedings are typically less formal than in a court of law. One extrem gthsand weaknesses. Of course, the success of this technique depends upo
ely important difference is that, unlike courtdecisions, arbitration offers al n the parties' faith in the fairness and objectivity ofthe neutral third-
most no effective appeal process. Thus, when an arbitration decision is iss party, and their willingness to compromise.
ued, the case is ended.
SUMMARY JURY TRIAL
Final and binding arbitration has long been used in labor
management disputes. For decades, unions and employers havefound it m Summary jury trials have been used prima-
utually advantageous to have a knowledgeable arbitrator rily in the federal courts, where they provide parties with the opportunity t
whom they have chosen o "try"their cases in an abbreviated fashion before a group of jurors, who t
resolve their disputes in thischeaper and faster fashion. One primary advan hen deliberate and render an Advisory Opinion.
tage for both sides has been that taking disputes to arbitration has keptever Like an early neutral evaluation, an advisory opinion from a su
yone working by providing an alternative to strikes and lockouts and has k mmary jury trial can help the parties assess the strengths andweaknesses o
ept everyone out of the courts. Given this verysuccessful track record, the f their cases and sometimes can facilitate the settlement of the dispute. An
commercial world has become enthusiastic about arbitration for other type other advantage of the summaryjury trial, which it has in common with th
s of disputes as well. e minitrial, is that it can be scheduled much sooner than a trial. When earl
Now a new form of arbitration, known as court- yevaluations help the parties settle their cases, the parties typically avoid
annexed arbitration, has emerged. Many variations of court- much of the delay, expense, and anxiety thatoccurs in litigation.
annexed arbitration
have developed throughout the United States. One can be found in Minn The Law on Alternative Dispute Resolution: Private Justice in the
esota, where, in the mid1990s, the Hennepin CountyDistrict Court adopted Philippines
a program making civil cases involving less than $50,000 subject to mand Caveat: This is merely a summary of the book. You should read the book
atory nonbinding arbitration.The results of that experimental program wer at least once. This reviewer does not contain some essential definitions
e so encouraging that legislation was later enacted expanding the arbitratio because such are already defined in the law, RA 9285. No copyright
nprogram statewide. As of 2003, most cases were channeled through an A infringement is intended.
DR process before they could be heard in thecourts. A growing number of
other federal and state courts were adopting this or similar approaches. CHAPTER 1
The Laws delay: An introduction
MEDIATION-ARBITRATION History of ADR
As its name suggests, mediation-arbitration, or med
arb, combines mediation and arbitration. First, a mediator tries to bring Pre-Hispanic era-Jose Rizal noted the custom of the inhabitants
the partiescloser together and helps them reach their own agreement. If the of the Philippines before the Spaniards reached its shores. They submitted
parties cannot compromise, they precede to arbitration the decision of their elders, which they respected and carried out.
before that same third party or before a different arbitrator According to Jose Rizal, it was better that the ..Judges were persons of
for a final and binding decision. the locality, forming a jury, elected by both parties who knew the case, the
customs and usages better than the gowned judge from the outside to
MINI-TRIAL make his fortune, to judge the case he does not know and who does not
know the usage customs and language of the locality. It is easy to
The minitrial, a development in ADR, is finding its greatest use in resolvin surmise that our ancestors practiced ADR.
g largescale disputes involving complex questionsof mixed law and fact, s
uch as Product
Hispanic Era-Discontented parties had to resort to going to the -some parties get afflicted with AVOIDANCE SYNDROME
SC of Spain which was a 36-day trip. Procedure for civil action, although (disregarding the existence of the problem because of relative
similar to the criminal cases, was definitely more costly and drawn-out. powerlessness high risks and costs involved)
The high cost and unwarranted delays ensured that only the Europeans 3) Parties choose their conflict resolution methods and select their
and the rich merchants in the city and the wealthy landowners in the rural strategies to settle their disagreements.
areas could afford the prosecution of the civil suit. 4) Evaluation of outcomes and the analysis of all ramifications of
Our primitive ancestors were ahead of their times! full implementation of the chosen methods of conflict management.
Problems of judicial delay according to Marcos (1967): ADR aims to solve the conflict not win the lawsuit which is the
1) The misuse of the due process and the abuse of legal aim of litigation. Conflict is a contest and a problem to solve (Bill
technicalities; Withers)
2) The intervention of the political pressure in the court cases; Modes of Resolving Conflict (Blake and Moulton)
3) Sheer weight of the court litigations arising from development 1) Withdrawal-Avoidance behavior on one or both parties
and growth; 2) Smoothing-emphasis of common interest and yielding by one or
4) Dilatory tactics of lawyers; both parties.
5) Neglect and laxity on the part of the judges. 3) Compromising-each side obtains a part of what it wants.
The Laws delay according to Florentino P. Feliciano: 4) Forcing-forcing the other to acquiesce.
1) An efficient and mismanaged court system that fails to act 5) Problem solving-involves an agreement in which both sides
promptly on legal issues ; meet their objective and affective needs.
2) The disorganized state of the court-connected agencies; When a person wins through a lawsuit can compare it as a Pyrrhic
3) The lack of preparation on the part of the litigants and lawyers; victory (pronounced /prk/) which is a victory with devastating cost to
4) The trigger-happy mind frame of lawyers to engage in long- the victor; it carries the implication that another such will ultimately cause
winded examinations of witnesses; and defeat.
5) The lawyers propensity to elevate their cases to the appellate Importance of Litigation (Peter Lovenheim)
courts and needlessly filing petitions for mandamus, prohibition 1) When you need to establish a legal precedent, such as the
and certiorari for the purpose of reviewing the interlocutory validity of the patent which your company holds;
orders of the lower courts. 2) When you need to publicly prove the truth, such as when a
But a more serious factor behind the laws delay in the Philippines customers complaint about the product quality or safety has
involves the billing practice of lawyers. (Billable hours, number of court received wide attention in the media products good name;
appearances) Delaying tactics to consume time. 3) When your companys legal rights have been infringed and you
The choice between a litigation and settlement is clear. He would stand a good chance of collecting substantial damages in court;
rather cut through the chase and solve his disputes swiftly and move on 4) When your opponent is unable and unwilling to participate in
with his life. ADR; and
AGAN v. PIATCO (GR> NO. 15501)-SC ordered all affected parties to 5) When serious crimes are involved in the dispute.
comment made by one of the parties that PIATCO commences arbitration CHAPTER 3
proceedings by filing a request for arbitration with the secretariat of the The Grand Misnomer: Alternative Dispute Resolution
International chamber of commerce, International Court of arbitration. Legal Basis of ADR:
Private Justice-the concept is fairly recent development in the
administration of justice. ART. VIII, Sec. 5 (5) 1987 Constitution
-Private Courts are managed by private organizations, called -Mandating the SC to promulgate rules that shall provide a simplified
ADR providers to serve those who need to resolve most types of and inexpensive procedure for the speedy disposition of cases.
consumer, civil, corporate and commercial disputes. Rule 18, Sec 2(a) 1997 Rules of Civil Procedure
-Parties generally agree to enter the private court system for one -Requiring the courts to consider the possibility of an amicable settle or
main reason: the public court system is too chaotic and unwieldy. of a submission to alternative modes of resolution.
-vigilante justice Alternative comes from the word alternate which means substitute,
-Judges, selected by the parties and are paid on an hourly or a spare tire, a second stringer, a fallback position.
per session basis, are for rent not for sale. They are paid for their time and Which is wrong because litigation should be the LAST option not
their expertise, not their expected favors. ADR.
CON: Creates a dual court system-one rich and one poor. No
means a perfect system, it offers enormous savings in time, effort, anxiety, Limitations of ADR Cases that involve:
money in the long haul. 1) Constitutional law issues
CHAPTER 2 2) Anti-trust suits
The litigation of conflict: A Confucian Confusion 3) Probate
Two fundamental reasons for failure of trial courts according to Ralph 4) Adoption
Warner and Stephen Elias: 5) Precedent-setting cases that involve punitive damages
1) Court Rules and Procedures are so complicated and inefficient 6) Actions of equitable relief, and
that lawyer fees and other costs end up being a bigger problem 7) Nuisance are beyond the scope of arbitration.
than the dispute itself. ART. 2035 of the Civil Code
2) Winner take-all system defies logic, encourages lying and If related issues of the following are matters in controversy may not be
generally brings out the worst in all participants. capable of being referred to arbitration:
The Nature of Conflict 1) Civil Status of persons;
Conflict- clash of divergence of opinions, values and interests and 2) Validity of Marriage;
emotions. 3) And legal separation;
Several phases of the conflict process by Peter Condiffe (1995) 4) Futures support;
1) Conflict starts when parties perceive their differences-they go 5) Future legitime;
though feelings of anxiety and frustration. 6) Jurisdiction of the courts;
2) Realization or expression of grievances and the assessment of 7) Future jurisdiction of the courts.
all angles in the conflict.
CHAPTER IV
The Settlement of dispute in the Philippines: Tesco v. Vera-While it is true that the CIAC shall have original and
A culture of PAKIKISAMA exclusive jurisdiction over disputes connected with contracts entered
into by parties involved in the construction industry in the Philippines,
Many Filipinos readily overcome conflict through pragmatic means. Gini the parties must first agree to do so before the CIAC can acquire
Grahams techniques in Resolving Conflict: jurisdiction to arbitrate the matter.
1) Identify the source of the problem 3) Consumer Arbitration
2) Applying the appropriate problem solving techniques: Consumer Act of the Philippines (RA no. 7394) provides for the
a. Creative visualization-examine the reasons for the problem creation of a consumer arbitration program to handle consumer
b. Brain-storming-come up with alternatives complaints. They have original and exclusive jurisdiction to mediate,
c. Automatic writing-ask inner self for reactions of those possibilities conciliate hear and adjudicate all consumer complaints xxx.
d. Mental Imaging-ask inner expert for advice in making choices. 4) Matrimonial Mediation
Litigation is what many Filipino Lawyers do best. Students of law Disputes between couples that are civil in nature may be the subject of
are trained to think like lawyers, but they are not prepared to deal with court-referred mediation, subject to the limitations of Art. 2035 of the
they should do best: solve their client problems and resolve their disputes Civil Code.
with the least amount of time and expense. The key to decongest the The ff. disputes may not be compromised:
courts is that students should be trained to be sensitive to their clients a) civil status of persons
wishes to settle their conflict or dispute swiftly and without expense to b) validity of marriage or legal separation
court trials. c) any ground for legal separation
Filipino Conflict Management System d) future support
Filipino Values e) future legitime
1) Pakikiusap-request and f) jurisdiction of the courts.
2) Pakikisama-Companionship
Keep communication lines open. 5) Corporate Arbitration
1) Amor Proprio (self-respect) Corporation Code provides for the mechanism to resolve
2) Pasikaban (one-upmanship) corporate disputes. The SEC can exercise its power to arbitrate the
3) Bahala na (fatalism) dispute upon written petition by any stockholder. (read more about
4) Gantihan (retaliation) powers of the SEC)
Impede settlement and plays key roles in clogging the courts with 6) Partnership Arbitration
frivolous suits that are brought just to Save face or to give a lesson to The CC states that is beyond the authority of one or more but less than
the opposing party. all the partners to enter into a compromise or submit to arbitration a
But, positive aspects of Filipino culture that may tend to mitigate the partnership claim or liability. When it comes to ADR, unanimous
Filipino propensity to litigate disputes: consent of partners is needed to carry out the plant to resolve
1) Kamag-anak network (close family ties) partnership disputes without a court trial.
2) Tulungan (mutual aid) 7) Administrative Arbitration
3) Bigayan (give and take) Doctrine of Non-exhaustion of administrative remedies
4) Palabra de Honor (Word of Honor) 8) Environmental Mediation
5) Bayanihan (cooperative endeavor) 9) Executive Arbitration
6) Hiya (shame of doing something wrong) 10) Foreign Arbitration
7) Utang na loob (recognition of a debt or obligation) 11) Banking Arbitration
8) Paggalang (respect or honor) 12) Mining Arbitration
9) Kompadre (godfather system) 13) Maritime Arbitration
10) Delikadesa (Being proper) 14) Insurance Arbitration
15) IP Arbitration
The Katarungan Pambarangay was seen by legislators as a means to 16) Securities Arbitration
decongest the courts dockets, by encouraging the settlement of minor Six-Step Structure of a face-to-face mediation meeting
cases at the barangay level, which will in turn allow the courts to speed up (I-H-I-M-I-S)
the adjudication of already pending cases. This again relates to the access- 1) Introduction and agreeing of ground rules
to-justice problem in the country. 2) Hearing what has happened or summarizing the facts
To ensure that the goal is met, the Local Government Code makes 3) Identifying the issues
KP mediation and conciliation a condition precedent to the filing of cases 4) Mutual understanding and communicating feelings
in court. 7 Though non-compliance does not result in jurisdictional defect 5) Ideal storming of a win/win solution
thereby rendering the court proceedings void ab initio, such failure, if 6) Signing of voluntary agreement.
seasonably raised, makes the case vulnerable to a motion to dismiss on the Causes of Court Delays (Justice Myrna Dimaranan Vidal)
ground of prematurity (Garces v. CA, 162 SCRA 504). (TAKEN FROM 1) the misuse of the due process and the abuse of legal
AN ONLINE PRIMER OF THE KATARUNGAN PAMBARANGAY technicalities;
Published by the UP-College of Law) 2) the intervention of political pressure in court cases;
Types of Arbitration in the Philippines: 3) the sheer weight of court litigations arising from development
1) Labor Arbitration and growth;
The Labor Code of the Philippines makes arbitration mandatory in 4) the dilatory tactics of lawyers;
cases involving the interpretation and implementation of collective 5) neglect and laxity on the part of judges; and
bargaining agreements (CBA) and the interpretation or enforcement of 6) Court vacancies.
company personnel policies. The original and exclusive jurisdiction of
which falls with the Voluntary Arbitrators. (Sanyo v. Canizares) Definition of Terms:
2) Construction Arbitration
The creation of the Construction Industry Arbitration Commission Alternative Dispute Resolution
(CIAC) ushered the birth of arbitration in the construction industry.(EO. It is defined as any process or procedure used to resolve a
1008) dispute or controversy, other than by adjudication of a presiding judge of a
Private or Government-entered construction contracts can be submitted. court or an officer of a government agency, in which a neutral third party
participates to assist in the resolution of issues. It includes arbitration,
mediation or conciliation, mini-trial, early neutral evaluation, or any Process Consultation
combination thereof. This is used if there is a long-standing relationship between the
Arbitration parties and they encounter problems in resolving the disputes. Process
A voluntary dispute resolution process in which one or more consultants act as counselors who focus on the process of negotiation,
arbitrators, appointed in accordance with the agreement of the parties assisting the parties in enhancing or restoring communication lines.
resolve a dispute by rendering an award. It is the reference by mutual
agreement or consent of the parties of a controversy or dispute to selected Court-Annexed Mediation
persons for an informal hearing and extra-judicial determination and Means any mediation process conducted under the auspices of
resolution. The hearing is usually held in private and the decision of the the court, after such court has acquired jurisdiction of the dispute
persons selected will be a substitute for a court judgment. This avoids the
formalities, delay and expenses of ordinary litigation. Court-Referred Mediation
Mediation Means mediation ordered by a court to be conducted in
A dispute resolution procedure in which an impartial third party, accordance with the Agreement of the Parties when as action is
mutually chosen by the parties, acts as the referee to help the contending prematurely commenced in violation of such agreement.
parties settle their dispute. The mediator, unlike the arbitrator, has no
authority to make the parties reach an agreement. He serves as a clarifier Chapter V
and facilitator without dictating settlement. The term mediation used The Mitigation of Litigation:
under ADR Law includes conciliation. A Cornucopia of Non-litigative Processes
Mini-trial
A dispute resolution method in which the merits of a case are Motivating Factors that contribute to the rise in demand ADR
argued before a panel created by agreement of the parties comprising processes:
senior decision makers with or without the presence of a neutral third 1) Avoidance of high expense of litigation
person after which the parties seek a negotiated settlement. 2) Fear of lawsuit will result in an outcome far more adverse than
Early neutral evaluation reasonably anticipated
An alternative dispute resolution process whereby parties and 3) Need to return workers involved in the law suit to more
their lawyers are brought together early in a pre-trial phase to present productive activities
summaries of their cases and receive a non-binding assessment by an 4) Wish to preserve and re-establish the business or inter-personal
experienced, neutral person with expertise in the subject of the dispute. relationship that was temporarily disturbed by the conflict.
Med/Arb (Already defined in this reviewer) The parties go through a
Combination of Alternative Dispute Resolution phase where parties in crafting a compromise agreement only if this goes
A particular alternative dispute resolution may be combined down in flames, the mediator will change colors-may not render a binding
with the other types of alternative dispute resolutions. The most common award as an arbitrator pursuant to the agreement. However, Sec. 20 of RA
is the mediation-arbitration (Med-Arb). In this kind of combination, 876 states, No Arbitrator shall act as a mediator in any proceedings in
parties first proceed to mediation to define the dispute and settle as many which he is acting as an arbitrator;xxx is subject to strict interpretation.
issues as possible, and then they engage in arbitration to settle issues that
remain unresolved by the mediator. Facilitation is a less active form of mediation. The neutral third party or
Class Action Administration facilitator acts as a moderator in large meetings, acting as traffic police
Method of resolving the claims of a huge class of claimants officer directing the flow of traffic in the meeting and seeing to it that
with the least possible litigation expenditures and court cost through an everyone says his piece during the forum.
administrative agency in charge of maintaining and tracking statistical
days as well as overseeing restitution payments, appointed by the court or Mini-trials are not a trial but a rational and voluntary manner in
chosen by the parties design a set of claims procedures. structuring a settlement of disputes between two big companies that are at
Voluntary Settlement Conference loggerheads over sticky business issues. This is otherwise known as rent-
Just like mediation it is a non binding hearing; the neutral party a-judge.
is allowed to express his opinions and views about the case and will be
obligated to formulate an advisory opinion to be submitted to the parties Besides, mini-trial is a voluntary, confidential and non-binding procedure
for review and approval. that affects a speedy, cost-effective resolution of corporate conflict.
Lawyers present summaries of their cases to chief executives or other key
Mass Tort ADR Projects (Manville Personal Injury Settlement decision-makers representing both clients. (Linda Singer)
Trust and A.H Robbins bankruptcy for claims of asbestos sufferers and for
claims related to the Dalkon shield, respectively) Mini-trial contract This is signed by the parties that contain provisions
governing the conduct of discovery, how hearing will be handled and a
Referee or Rent a Judge few more important stipulations.
A practicing attorney or a retired judge usually acts as a referee
who conducts a trial that incorporates the formalities of a regular court Class action administration is a sensible approach at dispute resolution
trial, complete with a court reporter and the observance of the strict rules is to have an administrative agency that is in charge of maintaining and
of evidence. tracking statistical data as well as overseeing restitution payments,
appointed by the court or chosen by the parties design a set of claims
Mock-Jury trial. procedures and forms that will be sent out to all the claimants.
A mock jury contract sets forth all the provisions government
the dispute resolution process chosen by them, including how the mock Voluntary settlement conference is where the neutral party, unlike
jury proceedings will be conducted. mediation, is allowed to express his opinions and views about the case and
Ombudsman will be obligated to formulate an advisory opinion to be submitted to the
He is a fact finder or referee hired by businesses to deal with parties for review and approval.
disputes inside the organization. The objective is to solve problems and
disputes quickly and informally by hearing and investigating disputes
between workers.
Conciliation uses a neutral third party to clarify issues in dispute so that 7) Low-balling
the parties concerned may themselves arrive at a mutually acceptable Agreeing to the offer made by the other part and then start chipping
agreement. away at the terms of the original offer until the offer has been severely
altered
Mass tort ADR projects 8) The Bait and switch
9) Advertising one product to bring people inside the store and finding
Rent-A-Judge incorporates the formalities of a regular court trial, excuses to explain the unavailability of the advertised product then
complete with a court reporter and the observance of the strict rule of quickly suggest that a different product be bought instead.
evidence but the parties may agree to modify or disregard most formal 10) Outrageous behavior
rules of procedure, evidence and pleading with some limitations. Exhibiting socially unacceptable demeanor to rattle the other party
11) Written work
Mock Jury Trial Presenting adhesion contracts to discourage question about the deal
Ombudsman 12) The vise
Applying verbal pressure to force the other party To do better than
Process consultation the process consultants (PC) differs from the what is being offered and to gain concessions.
mediator in that there is no discussion of the specific issues or any attempt 13) Trade off
to solve them. Thus, process consultants are often more like counselors Splitting the difference and seeking the midpoint
who help parties to get along better so that they can engage in better 14) Nibble
negotiation and problem-solving. Waiting for the major terms of the deal to be settled then asking for
the minor concessions to be included in the deal
ADR processes in US Government Agencies 15) Funny Money
International Commercial Arbitration Making mathematical calculations and dividing the payments over a
Small claims courts period of time to convey the impression that the other party is getting a
Neighborhood dispute centers good deal.
Regulatory negotiation Two major types of unassisted negotiations:
1) Combative Negotiator- who will emphasize only his own gains at
Chapter VI the expense of the other and employ hard line tactics, such as
The sport of Non-adversarial lawyers exaggerating claims or even threatening to abandon the discussion if
he does not get his way.
Leigh Steinberg, Effective negotiation is about exhaustive 2) Conciliatory negotiator-who will assume the role of a problem
preparation, utter clarity, heartfelt communication, and a sincere, solver rather than an intimidator.
demonstrated desire to fully understand not just your own needs but the
needs of other party.xxx Jesus and Socrates were two of the best Class of negotiations
negotiators of history. One is a form of syllogism, the other in the form of
parables. Rock and a Hard Place- The rock is litigation, which as a means 1) Position-based negotiations often involve hard-ball methods because
of resolving a dispute is frustrating, time consuming, expensive and full of it is premised on the presumed superiority of ones position.
friction. The hard place is negotiation, which can often prove unavailing 2) Interest-based negotiation is much more candid and amiable
as a means of reaching accord between two disputants; each of whom has technique that involves the willing disclosure of all germane
strong feelings about the matter. (Freund, Smart Negotiating, 1992) information to the other party so as to explore all avenues of
satisfying the needs and interests of the other side of the least
LITI-GATION (Marc Deiner) Litigation is often used for leveraging. A possible cost and at the shortest possible time.
lawsuit is filed and pushed to the limit to force a favorable settlement Leonard Koren and Peter Goodmans dead-lock breaking techniques
agreement. (1991)
Negotiation is a problem solving operation. (Romance Languages means
to do business) 1) Be positive and dont be put off by the good word no
Lawyers have a role to play in at least two crucial negotiation 2) Agree on easier terms first and skip over the points that are bogging
schemes: you down and come back to them late
1) Dispute or litigation settlement 3) Emphasize shared goals, get back to common ground and start
2) Transaction-planning to preventive law negotiations building up again
Basic Negotiation Tactics 4) Reduce complexity, break down complicated negotiations into pieces
1) The wince and solve each piece one at a time
Well-timed flinch at the exact moment when the other party 5) Brainstorm with your opponent to generate various alternatives
announces his terms. 6) Fine tune your agreement so that there is something that both of you
2) Silence can find acceptable
Staying absolutely quiet after making your offer or when the other 7) Passing written proposals back and forth for comment
party says something that you find disagreeable 8) Calling a time out when things get rough and not going your way.
3) Good guy/bad-guy
Working with an actual partner to make it appear to the other party EXHAUST ADR PROCESSES BEFORE LITIGATION.
that accepting the offer of the good guy is a much better alternative than
giving in the harsher terms bad guy
4) Limited authority
Buying time to obtain more authority from an imaginary principal or
a real person with greater discretion
5) Red Herring
Creating distraction to muddle the real issues
6) Trial Balloon
Raising questions designed to peek into the other partys position
without revealing your true objectives