MODES OF ALTERNATIVE DISPUTE RESOLUTION a Atty. Rita Linda V. Jimeno Appellate Court and Trial Court Mediator; een St Conflicts and Conflict resolution Background Conflict has existed since the beginning of humanity. It is a natural and inevitable part of our lives. Conflict - from Latin term conflictus, means “struck together” or “to come HTaieemee) (ola aaySources of Conflict « Control Over Resources, eg., space, money, property, power, food Paki =tn tne icon fae eX IASIT ANAL LOL) styles, tastes, culture and tradition = Values: religious, ideological, political, moral Cont...sources of conflict = Data: Has to do with struggle over facts, information, knowledge or lack of it. Whose Version is the truth? = Relationships: involves emotional oor Peslad [ont gc om elie mom te) eo 10 espa te ms J0) prob (olg- 6 Ome) gle -tom att the same functions ie., Ombudsman WE Cie« Nature of Conflict: * Conflict is not always negative, It is necessary for growth, learning, and change. In personal relationships it promotes closeness and mutual understanding of one another: * Conflict can be destructive, however, MM cea a Lecote Ace Nature of Unresolved Conflict « Brings out that dark part of our soul that thirsts for revenge and power = Emotions become enormously powerful and overwhelming = We become aggressive, jud ire) and hysterical - or, passive, apathetic or defensive » We say things we don't mean or uitcl EUniale MMe le ae mreConsequences of conflict = Unresolved Conflict may result in: Ate y « Filing of legal suits Lo sola long term adversarial Pee eels Rel mela 2] Cee sce-illin melee illo] Insidious Costs of Conflict = Filing fees, attorneys’ fees, ot = Decreased personal productivity/Waste of time « Impairs relationships/Deepens Celie alot # Tarnishes image = Produces irresponsible behaviour such as name-calling, fightingPositive Effects of Conflict « Opens up issues of importance resulting in clarification PevaveleitcladroneColunlaal eal ter-ia(e)aceleee lac} = Serves to release pent-up emotions « Stimulates critical analysis and creativity a Motivates and encourages change Peele mtn lig Man's Responses to conflict batelilatSmi Ce] ul stacy sle) gh 3 Ways of Flight or the AID eles Avoid : “ Iam creating a fact- finding committee to-investigate the problem...” “Tam transferring you to another department.”Cont...Flight Syndrome 2.Ignore: “Let us stay away from being emotional.” ™ Let’s just work and forget our (ollit gale 3.Deny: “ We are all one big family. We have no problems here.” “You are making a mountain out of a molehill, there is no problem!” Why We Respond by Flight For political reasons: By deflecting the issues, decision makers can distance themselves from the dirty work of engagement in conflict resolution Some people or organizations erp ait miner tameole la oe 1aC Mat Nm Lea incentive to resolve them, eg., Leftists thrive on conflict in govt.Cont..why we respond by Flight . We, Filipinos, are generally, non- confrontational. Refusal to show personal anger and pain Refusal to be responsible for the pain caused to others. Eto) (0sr-) keen et Lalo) punish or seek retribution. Fight Mechanisms Fighting Violently (WIN/LOSE) Use of Physical Violence Wars/ armed conflict Quiet fighting: strikes, demonstrations, rallies, civil disobedience, white paper, signature gathering, picketing Litigating or ArbitratingNon- Violent Fighting: The Modes of ADR « Adjudication through the Courts = Arbitration = Conciliation « Mediation 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.ARBITRATION The communication is relatively non- coercive but the arbitrator controls the process and formulates the solution after discussion with, and between, the parties Features of Arbitration Parties present evidence before the Arbitrator or panel of arbitrators Parties communicate & draw up the Terms of Reference - Issues and admitted facts are defined Definite time frame for proceedings/Thus, Faster Resolution Parties agree to abide by the Arbitral Award (exception: domestic arbitration)The Law on Arbitration R.A.876 — The Arbitration law (Approved on June 19, 1952) Lai coo Resort to arbitration is agreed upon by the parties in a contract If conflict arises, a demand to arbitrate is served upon the other party The demand shall name the arbitrator chosen by the party making the demand ‘The other party must reply within 15 days stating his choice of arbitrator MX aa en Tnel sgl Col ecaet-l aca ca roll lee Eleller-icolg if the-other party fails or refuses to act-on the demand, the party making demand Re MMU RO aoe Oct a eo lean Bae having jurisdiction, a copy of the demand= The Court issues an order directing the parties to arbitrate pursuant to the contract « The arbitrators then conduct dateroiaia\e(—} = The award is rendered within 30 days from the closing of the hearing a Anytime within 30 days from the award — a party may apply for an order confirming the award When an award may be vacated « Corruption, fraud or other undue means. = Evident partiality or corruption of the arbitrators or any one of them « The arbitrators were guilty of misconduct; or any one of them should have been disqualified «= Arbitrators exceeded their powers= Nature of Award under RA 8 *Docketed as a judgment *Appealable to the Court of Appeals, only on questions of ea RA 9285: The ADR act Of 2004 = Coverage: - Domestic Arbitration - International Commercial Arbitration - Arbitration of Construction Disputes (Under the CIAC) - Mediation« Commercial Arbitration * Covers matters arising from relationships that are commercial in iir-la0le- lee DU cu Uemura Peeing anos ee eer slg ee Fete) aieetelela) » Carriage of goods or persons Peet « Domestic + covered by the Arbitration Law or R.A. 876 = International Commercial Arbitration May follow the rules under the Model Law or the United Nations Commission on International Trade Law (UNCITRAL) or under the International Chamber of Leela gee glean 1a(olg- ROL mold Arbitration (ICC/ICA)How International Arbitration is instituted: = Parties must clearly agree in their contract under which arbitration rules they wish to be covered: = — If they agree on Ad Hoc rules, they shall be bound by the UNCITRAL Rules = If they prefer Institutional arbitration- The ICC Int’l Court of Arbitration will govern Features of the ICC International Court fo)r Vg oliug=}afelel ee isla @ Ox Gol tiga ipt sie piagl fen a ial fetou-la—Wr-[ ole) |=te] = __ Arbitration commences upon filing of request for arbitration by one party O Approves the main steps such as the nomination of Arbitrators, the SU Mey me ieee ome de Meeiiecmel gd arbitration PML Me OcLe lglg ial ag EN eeAdditional Features of ICC Arbitration... = Confidential = Predictability of time frame, ie., resolved within 6 months from the signing of the Mlle ele tale-} Beier iame- ls mite lii aac dl Pcie Rese e ant mole Vr lee mV Realm he ot IIa de) g aa Oleh crate meae-lUrelae-M aera sl} iifeleece Rm att mec lt lusty = ICC Court is the biggest dispute resolution institution in the world Berle elm teue OMT arbitration = Ad hoc rules ~ parties execute their own atrangement without reference to institutional rules of supervision However, the ICC may be requested to appoint the arbitrators mei mM EN Kilt) But, it is dependent on the cooperation of penta Vp LEE eLeM of-) ator seel sl iloleinht-1)Additional features of UNCITRAL arbitration... Commences upon receipt by respondent Of written notice of arbitration from (Srl But, if problems arise as to initiation, the intervention of a court of law may be necessary (which could be more expensive and lengthy than employing an institution) MMe Mar CRU omen Melia) rendering the Award, unlike in ICC Enforcement: 1958 New York Convention CONCILIATION The parties’ interests are paramount. The communication is non-coercive. The conciliator controls the process, has a real part to play in formulating the solution and may give advice or make recommendationMEDIATION ‘The parties’ interests are paramount. The communication is ‘non-coercive, The mediator controls the process but the solution comes from the parties in dispute Features of Mediation = Voluntary process, with the help of a Xela g-] Clic of-lgayg = Mediator has no decision-making power = Parties must meet face to face a Aim is to reach mutually beneficia agreementDispute Resolution Alternatives Soa % Need for Paradigm shift Judicial Process: Rights-Based Lixclaeltreer-llalntar- late Plie-ialoL- Lalani ileamcatclig legal counsel Objective: To obtain a legal ruling Process: Litigation Ilse fares hcle-t-Iar-1f Focus: Legal rights and past events tte Leta ame Lele cd Result: Win - LoseMediation: Interest Based 1, Parties: Disputants, with or w/o orerelaiy=)) Objective: To encourage disputants to resolve their conflict amicably among themselves Process: mediation Nature: non-confrontational, feel ae mene Focus: Interests of the parties Medium: Mediator Result: WIN-WIN Types of Mediation Court-Annexed Mediatable Cases: 1. All Civil cases, eg. Damages, Money claims, Torts, specific fol acelaunt-lareoh Ejectment, property disputes, settlement of estates 2. Family cases, only insofar as: issues of — support; custody; dissolution Emmet raed property regime are trelale tne 1)Court Annexed Mediatable Cases 3. Certain Criminal cases are mediatable but only with respect to the civil aspect, e.g. BP 22 and Quasi- Offenses 4. Labor cases 5.Appealed civil and labor cases 6. Cases cognizable by the Lupong Tagapamayapa Cont... Types of Mediation pert Mel aaa T rel tois [ol May occur before parties decide to file a Case, eg., Property issues between spouses who are separating; Settlement of Estate Barangay conciliation and mediation beagle danilalen git lccolmelioysyt ik Tribal settlement of disputes Restorative justice mediation 20‘SUCCESS RATE OF NEDATION cee Figure Indicators that mediation may be appropriate = Both parties voluntarily agree to undergo mediation » There is rough equality between the parties and there is a fair leverage bole g a tb) = Each of the parties is competent to negotiate for himself = The conflict is moderate/parties are able to be assertive 24Indicators that mediation may be inappropriate = One or both of the parties have a hidden agenda/ or not seriously committed to resolving the dispute = The power imbalance is pervasive and not conducive to mediator intervention = One of the parties is in a disturbed emotional or psychological state; or under the influence of drugs Cont. Indicators that mediation may be inappropriate = There has been a history of substantial physical, psychological, emotional, social, economic or sexual abuse leading to fear and intimidation. There is a high risk of personal danger = When the issue involves a legal issue that cannot be subject to agreement 22Issues not subject to agreement » Future Legitime « Future support « Criminal Liability and penalty. « Marital status: Nullity of marriage or. legal separation Stages in Mediation = Agreement to mediate s Mediator’s Opening statement 1.Introductions 2.Explanation of Nature: Voluntary, Confidential, interest-based, impartial. Ground rules; the process including caucuses; logistics. » Story-telling/ Presentation of the (orsi1-s oh =r Loemel-] aad 23Cont... Stages in Mediation = Identifying areas of agreement « Defining and Prioritizing issues « Generating Options « Identifying the BATNA,WALATNA and MLATNA ( ie., Best Case Scenario, Worst Case Scenario and Most Likely Scenario) - normally during caucus Cont... Stages in mediation: Reality Testing the parties’ options = Mediators should help the parties test the viability of their BATNA - or their Best Alternative to a Negotiated Agreement: be ele ioe = WEN ero) acer Seen ly eel ogee » Will litigation guarantee one’s BATNA? * Check downsides of a hard line position 24Cont... Stages in Mediation = Negotiation = Final Decision by the parties « Writing of the compromise agreement Ciesile) acim comet oa &el ged aliagl oi cite aime ieee oo lam Colmer e eo mediation or, Compromise PaNS|e-tcnt inl Negotiation Styles = The Soft Negotiator - wants a settlement at all cost « The Hard Negotiator — not genuinely interested in compromise; Wants it cull « The principled negotiator - negotiates fairly with a view to achieving a mutually-beneficial outcome 25Mediation Tools/Skills Pistoia laaiiale| = Generating/expanding options Peemevelli-iia\eMe) am (alta ey ae LU Lol td 1.Re-framing by the mediator = Re-framing - a valuable mediator skill. It involves rephrasing of communication by one party within Ame tg (elle nla using words, intonation and Pearl ae lee re(emeliai-la-lala Perspective on the situation. A process of re-labelling and providing a positive connotation to a behaviour or situation. 26Cont...Re-framing Be eat ee i OU enue rene erin “He is a rotten husband. He does not care for me and our children. He loves his work bale) aie Re-frame: Your wife-said that you may be ures eoleM vem Cie MOR eg Omcli EL le| your children miss you and want you to Fy oTcia eM tare CM LMU Tm aloo Cont...Re-framing = Shift a positional statement to one that reflects interest or needs - Ex. “I want this journalist to pay me Pi million because of his libelous (Scltte1aeoeid moan atk oleae Tiel) Re-frame: “So you are angry because his remarks embarrassed you and you want your good name to be redeemed?” 27Cont...Re-framing = Shift focus from a personal statement to an emphasis on the problem ( E.g., support/Child abuse case) “Walanghiya ang lalaking yan.Papatayin kaming mag-iina sa gutom kaya mas gusto ko pang makitang makulong BY Ma * Re-frame: “ Ang ibig nyo bang sabihin ay napapabayaan nya ang pagbibigay ng suporta sa inyong mag-iina kaya masama ang loob nyo?” = Moving away from focus on the past to the present and the future « Moving away from personal focus to a focus on mutual interests and concerns « Re-framing the motive or intent = Re-moving an accusation or hostility 282.Generating Options during the negotiation stage = Two main tasks of a mediator 1.Help participants articulate options they know or want 2. Help invent and develop new tole) u(elaty = Techniques for generating options: 1. Brainstorm PA solo Rela alegre eee Cont...generating options 2. Search for mutual gains 3. Invent a number of options 4 Propose package deals in which several issues being negotiated are all part of the agreement 5. Propose tie-ins in which an issue considered to be extraneous by the other party is introduced and made part of the settlement 29Creativity Exercise Connect all 9 dots using only 4 straight and connected lines 3.Focusing on Interests An interest is the real motivation behind a Party's demand. It represents the needs and concerns of a person or party. E.9., A Esai Mol excels ig la ar-lale bi g-lel-limee) ma lt-lelel aoa) the family ete M gC NN AOR leave} perceived interest or interests Ex. Complaint for Child abuse for failure to Si}e)elelem 30Examples of interests: = Goodwill = Reputation = Relationships Pesioel ging = Business opportunities = Recognition a Organizational or personal development 31Moving from position to interest THE CAUCUS A private meeting between a mediator and each of the disputing parties. Pelt ia eleRi-wol MOT ty Allow a breathing period. Challenge each side’s fel=iacoceu how Reality checking of positions. Encourage the sharing of information Lyell ee llega mol surfaced in joint sessions. 32aAllow. strong feelings to be expressed in private. aLay out mediator’s perception of the situation to help change ATU Eo telielaiavasinn) ole) genes ciel aAllow parties to discuss options Pal Mela Le ane og ie aeo the other party. Calling a Caucus » Always caucus with both sides. = Must not be too long. = Clarify if information shared in caucus Is confidential Pais .eL0 |g |¢| eam | AOL] geo Ce <1 3} informati cle e-Lame0) e -odici them in in the process. 33,OLEH WitliIN Thinge dame pRoceDEES S Negotiation| Medi: Arbitration i RR] RKO AR sia »o | | fice Re-orientation of lawyers’ Roles CPAs SW lg darn Sl pest ne Geen) cache Os SC issued the following guidelines for lawyers in court-annexed mediation: ¢ Re-orientation of attitudes toward dispute: From Litigation -- under the F(o\—Te-r- gt] ikea ola eece eam nice Pe cle Ne-LA ope *To a problem-solving opportunity to Frye aoe eee ea ee mac Clicnleon 34« The lawyer must drop his combative role and adopt a collaborative role toward the common goal of helping the parties resolve their differences to their mutual advantage. = He must shift gears and accept the role of a consultant or adviser. He must help his client understand and appreciate the mediation process and fice elaine “ I envision the day when attorneys will be viewed as counsellors, problem-solvers, and deliverers of prompt, appropriate and affordable ice.” - Justice David R. Brink 35,