ALTERNATIVE

DISPUTE
RESOLUTION in
GENERAL
Prof. Ma. Cristina M. Cabrera
 Objectives

 To introduce basic concepts of ADR

 To show the benefits and advantages of
ADR over litigation
 To situate ADR in the big picture of APJR
of the Supreme Court
 To introduce the ADR in the workplace
Basic Concepts
of ADR
Definition of ADR
Usual meaning –
ALTERNATIVE
(choice, option)
Negative connotation of
second rate remedy
Preferred meaning –
APPROPRIATE
(suitable mode for
resolving a particular
type of dispute)
Definition of ADR
DISPUTE – a contest
or conflict between
one who asserts a
right or makes a
claim against
another who
denies such claim
or resists it
Definition of ADR
RESOLUTION - in relation to
conflict
 Agreement

 Settlement

 Termination

 Reconciliation

 Handling

 Management

 Outcome

 Solution
 General Definition of ADR
 Any method, process or procedure which is
intended to transform a conflict into a less
costly form of interaction between the
conflicting parties
 Transformation of a painful and unproductive
quarrel between two people into a creative
dialogue
 Less costly in terms of the ongoing relationship,
feelings, health, safety, care of others such as
children, time, money, efforts and resources
generally
 Two concerns in
Dispute Resolution

1. Intention to satisfy our own needs

(competitiveness)
2. Intention to satisfy the needs of others
(cooperativeness)
 Workshop on Strategies for
Managing Conflict
using the Thomas Killman Conflict Mode Instrument

Objectives of the Workshop

 Determine the conflict strategy of each
participant
 Analyze the characteristics and effects of
each conflict strategy
 Determine approaches to dispute resolution
Strategies for Managing Conflict
Column 1 – competing (forcing)
Column 2 – collaborating (problem
solving)
Column 3 – compromising (sharing)
Column 4 – avoiding (withdrawal)
Column 5 – accommodation
(smoothing)
 Strategies for Managing Conflict
Smoothing Problem-solving
Accommodating Collaborating
Yielding Confronting
I lose/you win I win/you win
Concern for other &
Relationship/
CO-OPERATIVENESS Sharing/Compromising
Part-win/part-lose

Avoiding Forcing
Withdrawing Competing
Impasse/Inaction Contending
I lose/you lose I win/you lose

Concern for own goals

COMPETITIVENESS
 Twin concepts of ADR

 Choice over the Judicial

Mode of Dispute Resolution
 Choice over the Adversarial
Method of Resolving Disputes
 SUITABILITY OF MODE FOR
RESOLVING DISPUTES
ADR
 Inter-personal disputes involving only
private interests
JUDICIARY
 Disputes involving public policy, public
interest, and constitutional issues
 Article 2028 CIVIL CODE
A compromise is a contract whereby the
parties, by making reciprocal concessions,
avoid a litigation or put an end to one already
commenced.

ARTICLE 2029 CIVIL CODE

The court shall endeavor to persuade the
litigants in a civil case to agree upon some
fair compromise
 RECIPROCAL
CONCESSIONS

 Plaintiff may have to give up full

vindication of rights asserted to achieve
compromise and gain restoration of
underlying relationship with defendant
 ARTICLE 2035 CIVIL CODE
No compromise upon the following
questions shall be valid:
1. The civil status of persons;

2. The validity of a marriage or a legal

separation;
3. Any ground for legal separation;

4. Future support;

5. The jurisdiction of courts;

6. Future legitime.
 Group Exercise

Problem: The Brothers Kiko and Tino

Objectives:
 Discover various ways of resolving a
conflict
 Establish the contrasts between these
methods
 Modes of Dispute Resolution
Unilateral Mode
 Fight War
Third Party
 Flight Surrender
Intervention
 Forgive Amnesty
As Decision Maker
 Arbitration
Bilateral Mode  Adjudication
 Negotiation As Facilitator / Persuader
 Peace Talks  Conciliation
 Mediation
Approaches to Dispute Resolution
NEGOTIATION
The parties’ interests are paramount. The
communication is non-coercive. The solution
comes from the parties in dispute.

Solution
Approaches to Dispute Resolution
ARBITRATION
The communication is relatively non-coercive but the
arbitrator controls the process and formulates the
solution after discussion with and between the parties.

Arbitrator

Solution
Approaches to Dispute Resolution
ADJUDICATION
The rule of law is paramount. The judge controls content,
process and outcome. No direct communication between
the parties who are usually (but not always) represented
by advocates.
Judge

Solution
 Approaches to Dispute Resolution
MEDIATION / CONCILIATION
The parties’ interest are paramount. The communication is non-
coercive. The mediator/conciliator controls the process, has a real
part in formulating the solution and may give advice or make
recommendations but the solution comes from the parties in
dispute.
Solution

Mediator/Conciliator
 Significant Distinction Between
Different Modes of Dispute Resolutions
CONCILIATION / ADJUDICATION /
MEDIATION ARBITRATION
1. Product is a compromise 1. Product is a
agreement reached by the judgment/decision rendered
parties to resolve their by the judge/arbitrator
dispute concluding that one party is
right and the other party
acted wrongly.
2. Neutrality is desirable but 2. The judge must be neutral,
the lack of it is not objective and detached
necessarily a ground to otherwise the fairness of his
disqualify the decision would be
conciliator/mediator. questioned.
Significant Distinction Between Different
Modes of Dispute Resolutions (cont.)

CONCILIATION /
MEDIATION
3. An agreement to settle the
dispute may be based on
personal considerations without
relevance of the ultimate facts.
4. This is a “person-oriented”
process
5. This is a “forward-looking”
process towards restoring the
disrupted harmonious
relationship between parties.
ADJUDICATION /
ARBITRATION
3. The decision must be based on
accurate findings of ultimate
facts.
4. This is an “act-oriented”
process.
5. This is “backward-looking”
process seeking to establish a
past event or act that led to
the dispute.
Significant Distinction Between Different
Modes of Dispute Resolutions (cont.)
CONCILIATION / ADJUDICATION /
MEDIATION ARBITRATION
6. This is focuses on 6. This focuses on the punitive
reconciliation. aspect.
7. Mastery of interpersonal skills 7. Mastery of technical rules of
to persuade the parties to procedure and evidence is
enter into a compromise is essential.
essential.
8. Persuasion is the essential 8. Compulsion is the essential
tool of the conciliation tool of the adjudicative
process. process.
Significant Distinction Between Different
Modes of Dispute Resolutions (cont.)

CONCILIATION / ADJUDICATION /
MEDIATION ARBITRATION
9. Informal, congenial setting is 9. Formal, serious, temple of
conductive towards justice atmosphere is required
reconciliation. to impart seriousness of the
proceedings that may result in
depriving a party of his life,
liberty or property.
 Objectives of ADR

 Resolve the dispute speedily

 Preserve parties relationship

 Lessen burdens of disputes

 Address underlying issues and

prevent recurrence of disputes
 Advantages of ADR

 Flexibility/Informality
 Speed of Resolution
 Cost Efficiency
 Choice and expertise of
impartial neutrals
 Privacy
 APJR - Vision of the Judiciary
 “A judiciary that is independent, effective
and efficient, and worthy of public trust
and confidence;
 And a legal profession that provides
quality, ethical, accessible and cost-
effective legal service to our people and
willing and able to answer the call of
public service.”
Chief Justice Hilario G. Davide, Jr.
Main Problem Sought to be Addressed
by ADR – Clogged Dockets
 Approaches to Unclog Dockets
Direct Approach – Output
 Increase court efficiency and disposal
rate
Indirect Approach – Input
 Decrease filing cases by restricting
judicial access
1. Katarungang Pambarangay Law

2. Prior exhaustion of administrative

remedies
3. Court Diversion to ADR
 Court Diversion to ADR
1. Court-Annexed Mediation (CAM)
2. Appeals Court Mediation (ACM)
3. JURIS Project
4. R.A. 9285 – ADR Law of 2004
 Construction Disputes
 International Commercial Disputes under UNCITRAL
Model Law
5. ADR in different fields (workplace, healthcare,
schools etc.)
 Resolving Conflict
in the 21 Century
st

Workplace: The
Role of Alternative
Dispute Resolution
 Importance of ADR in the Workplace
 Globalization
 New Employment Relationship
 Internal Labor Markets v. New Psychological Contract
 Organizational Citizenship Behavior
 New Risks and Vulnerabilities of the New Employment
Relationship
 Job Insecurity
 Wage Uncertainty
 Losing the value of labor market skills
 Dissolution of stable and reliable employee old age and social welfare
benefits
 Cushioning Risks of the New Employment Relationship
 Evolution of ADR in the Workplace
 Dispute Management
 Cost Control
 Legal Mandates
 What is ADR in the Workplace?

 An alternative to traditional litigation or

administrative agency complaint processes
 Excludes dispute settlement under the
Labor Code
 Appropriate Dispute Resolution to solve
disputes between:
 Employer – Employee
 Employee - Employee
 Why use ADR in the Workplace?

 Resolve disputes more quickly

 Opportunity to improve employee morale and
teamwork
 Achieve higher performance, productivity and
profits
 Retention of valuable employees
 Create a longer lasting and mutually beneficial
resolution
 Limit potential liability for damages
 Lower legal fees
 Disputes in the Workplace being
addressed by ADR
 Work  Management
Performance  Inter-Group and
 Discrimination Intra-Group
 Compensation  Transition and
 Termination Change
 Harassment
Management
 Cultural Diversity
 Discipline
 ADR Systems in the Workplace
In house:
 Grievance or conflict
management procedure
 Participative dispute system
design (peer review)
 Compliant hotline

 Ad hoc basis (case to case basis)

ADR Systems in the Workplace

Third Party:
Mediation

Arbitration
 Workplace Mediation
 Process in which the parties use a third
party neutral to assist them in negotiating
a mutually agreed resolution of their
dispute.
 The neutral must have no personal
interest or stake in the dispute and has no
power to decide the dispute or impose an
outcome on the parties.
 Assisted negotiation
 Arbitration

 Adjudicatory process whereby a third

party hears the issues in dispute and
renders a decision based on the merits.
 Both parties voluntarily agree in advance
to accept the arbitrator’s decision
 Concerns about ADR
in the Workplace
 Structural Bias
 Employee was forced to agree in advance to arbitrate
any dispute as a condition of initial hire or continuing
employment
 Denied employees a right to legal counsel in the
arbitration hearing
 Denial of a right of an employee to participate in the
selection of the arbitrator
 Due Process
 Cost of the Neutral
 Imbalance of Power Between Employer and
Employee
 Operationalizing Workplace ADR
 Encompasses a host of approaches, instruments and
techniques
 Establish programs that incorporate a number of phases,
thereby offering the employee a number of opportunities
to address and resolve a complaint
 Acknowledge that a critical goal for a conflict resolution
program is to encourage the employees to address
workplace issues and seek solutions that could benefit
both the employee and the employer
 An essential ingredient is to gain buy-in of all parties,
most importantly, managers and employees, around the
program’s design, implementation and communication
process to ensure the programs success.
 BALANCE AND HARMONY

“Change and movement have their times;

safety and danger are in oneself. Calamity
and fortune, gain and loss all start from
oneself. Therefore, those who master
change are those who address themselves
to the time. For those who address
themselves to time, even danger is safe;
for those who master change, even
disturbance is orderly.”
 MERRY
CHRISTMAS
AND HAPPY
NEW YEAR!
THANK YOU!