University of San Carlos

College of Law
Alternative Dispute Resolution
SEMINAR
SY 2010-2011

READER

P A R T II

TABLE OF CONTENTS

I. From Advocate to Advisor: The Role of the Lawyer in Mediation……………………..……………….2

II. Visioning & Coaching Techniques in Mediation………………………………………………………………5

III. Philippine Community Mediation, Katarungang Pambarangay ……………….…………………….7

IV. International Arbitration: Basic Principles and Characteristics………………………………………14

V. Selected Laws on ADR ………………………………………………………………………………………………..19

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From Advocate to Advisor: The Role of the Lawyer in Mediation (October 2010)
By Michael Lang
http://www.mediate.com/articles/langlawyerrole.cfm

The Judiciary of Trinidad and Tobago recently initiated a Court-Annexed Mediation Pilot
Project, managed by the Dispute Resolution Centre. It involved 60 non-family civil disputes. The
objectives of the Pilot Project included learning whether mediation of such disputes is an
efficient, cost-effective adjunct to the judicial process and what types of disputes are most likely
to be resolved by mediation.

For many of the attorneys, participating in the Pilot Project was their first direct experience
with mediation. They quickly became aware that the mediation process required a modified skill
set. To assist their clients and advance the goals of mediation, it is often useful for attorneys to
shift gears, adopt different strategies and emphasize skills which may lean more heavily
towards being an advisor than an advocate.

How then, can attorneys, trained and experienced in trial advocacy, tailor their skills for
mediation? Let us first distinguish between mediation and litigation or arbitration.

Mediation vs. Litigation and Arbitration

Mediation is a confidential, private process in which a neutral third-party guides disputing parties
in a constructive conversation—essentially an assisted negotiation. The mediator helps the parties
express their positions and proposals, listens thoughtfully to each, clarifies issues in dispute,
searches for solutions that address the needs of all and works toward a fair, workable settlement
to the dispute. The parties themselves are the decision-makers. This attribute, known among
professional mediators as self-determination, is what makes mediation unique.

Arbitration and litigation also involve a neutral third-party, but can be distinguished from
mediation in several respects. They are more formal and structured processes involving the
presentation of testimony and production of documents. Generally, court proceedings are
conducted in public and strictly according to sets of rules and procedures that can be enforced by
the judge. The third-party neutral is also responsible for determining the final outcome of the
dispute.

Mediation, by contrast, is a less formal and relatively uncomplicated process involving the
disputants in discussions directly and indirectly with one another and empowering them with the
responsibility for the outcome.

Given the more central role of disputants, what then, are the tasks and responsibilities of
attorneys in mediation? To answer this question, it is necessary to examine the role of attorneys
in two phases—pre-mediation and during mediation.

Pre-Mediation

As with litigation and arbitration, adequate preparation is vital to a successful mediation, and
attorneys can prepare their clients by discussing the following:

What is mediation and how the process is conducted. They may contrast mediation with other
processes familiar to the client. They should point out that mediation is essentially a problem-
solving process that has as its goals a thorough discussion of all issues in dispute, the exchange of
information, ideas and proposals and the opportunity to seek creative solutions to the dispute.

The differences between mediation, litigation or unassisted negotiations, and attorneys may
explore whether participating in mediation is likely to be a positive and fruitful exercise.
The role of the mediator, as a manager of the process, a facilitator of negotiations and a guide in
the effort to secure a full settlement. In particular, attorneys emphasize that, in mediation, clients
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usually speak on their own behalf and are directly involved in making decisions with respect to
the dispute. However, the value of attorneys at mediations should not be discounted as they often
assist in moving the process forward.

Attorneys should also inform their clients of the opportunity for private discussions either with
the mediator or with the attorney and client only.

With respect to the issues in dispute, attorneys and clients should discuss opportunities for
resolving the dispute, the range of possible outcomes, the issues on which the client may have
greater or lesser flexibility for settlement and the minimum terms and conditions the client will
accept. Attorneys should also have a frank discussion of the alternative to settlement and, in
particular, the cost, time and risks of litigation.

As they would in litigation or arbitration, attorneys must ensure that all documents and other
materials essential to a complete discussion and resolution of the issues are prepared, reviewed
and available at (or sometimes exchanged prior to) mediation. Resolving the dispute will depend
in significant measure on the completeness of information available.

During Mediation

The greatest shift in the attorney’s role and responsibilities arises once mediation begins. During
mediation, attorneys typically assist their clients in some of the following ways:
They acknowledge the client’s central role and, in particular, do not speak for the client; instead,
attorneys offer advice, guidance and information.

They do not challenge or cross-examine the other party, spar with the other attorney or, in other
ways, treat mediation like litigation.

Attorneys maintain a supportive, cooperative demeanor and demonstrate commitment to the

mediation process by words and behavior. They do not treat mediation as an adversarial process
or as a means for finding the truth; instead, they acknowledge the importance of searching for
solutions. Attorneys assist in defining the issues to be resolved.

They provide normative information, usually in private, about the benefits and risks of specific
proposals.

They act as an agent of reality, helping the client to balance the risks of accepting or rejecting
settlement offers and the potential complications of presenting the case to a third party for
decision as well as the time, stress and expense of a trial.

Attorneys help manage the process by asking for breaks, for opportunities to speak privately with
the client or for a private meeting with the mediator.

They assist clients to communicate by summarizing discussions or clarifying matters that are
confusing or where miscommunication is preventing constructive problem-solving, or worse,
leading to increased conflict.

They help clients stay focused on the issues at hand, the information presented and options for
settlement as well as remain calm as they deal with frustration over the pace of progress or feeling
overwhelmed by direct confrontation with the other party.

Attorneys encourage clients to find creative solutions that will resolve the dispute.

They draft documents as required.

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Those attorneys who view mediation genuinely as an opportunity for their clients to participate
actively in discussions about, and settlement of, their own disputes are valued allies in the
process.

This view is expressed repeatedly in comments from parties and mediators in the Court-Annexed
Mediation Pilot Project. In discussing the role of the attorneys, one mediator notes:

I used the attorneys a lot. I spoke to them separately...I didn’t give an opinion, but did a lot of
talking about risk...Generally I worked with the attorneys and then sometimes left them to sell an
idea to their clients, or sometimes sat in with them.

Another mediator expresses appreciation for the attorneys in helping to resolve a very contentious
mediation, in this way:

...the attorneys from both sides were very helpful in bringing clarity regarding their legal
positions. It was very fruitful and they were able to settle everything.

At times, the shift from advocacy to advice collaboration can be awkward and unsettling for many
attorneys. Recognizing that their clients benefit from this collaborative role, and that mediators
appreciate their constructive participation, attorneys should utilize mediation as they would any
other dispute resolution process—wisely and with due regard for their particular role in making
the most of its unique attributes. In managing the transition to mediation advocacy, attorneys
may benefit from additional educational programs and seminars where they can learn to use their
knowledge, experience and skills in support of their clients’ participation in this helpful and
constructive process.

The transition from trial advocacy to mediation advocacy may be challenging, but the rewards are
worth the investment of time and energy.

Guide Questions:
1. What is mediation?
2. Distinguish mediation from arbitration and litigation.
3. Before going to a mediation proceeding, what does the author recommend that attorneys
should discuss with their clients?
4. Describe the ways in which attorneys may assist their clients during mediation.
5. Compare the role of attorneys in mediation as described in this article with that of the role of
attorneys in mediation as described in Rule 4 of the IRR of the ADR Act of 2004.

Further Readings:
Carolyn A. Mercado and Damcelle S. Torres, Court-Annexed Mediation: Summing up the Past
and Charting the Future, A Sourcebook on Alternatives to Formal Dispute Resolution
Mechanisms, National Judicial Institute: 2008.

Leonard Riskin, Understanding Mediators' Orientations, Strategies, And Techniques: A Grid

For The Perplexed, Harvard Negotiation Law Review Volume 1:7-51, Spring 1996.
http://www.mediate.com/pdf/riskinL2_Cfm.pdf

Susan Oberman, Style vs. Model: Why Quibble?, Pepperdine Dispute Resolution Journal. Vol.
9:1-62 2008.
http://www.commongroundnegotiation.com/documents/Articles/1ObermanArticleFINAL.pdf
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Visioning & Coaching Techniques in Mediation

Bruce Blitman and Jeanne Maes
Dispute Resolution Journal, May-Jul 2004

Visioning has become a popular technique to help the parties to a mediation create
shared objectives. This article shows how mediators can use coaching skills to take advantage of
this technique in reaching desired outcomes in mediation.

The goal of mediation is to help the parties reach a mutually agreeable outcome. There
are many techniques that mediators use to assist the parties in attaining this goal. Central among
them is helping the parties reframe their interests and needs in a way that will help them see what
they have in common and what they might like from each other. Some mediators take a "problem-
solving approach" to this task, while others use "visioning." Problem-solving requires the parties
to define their problems and then try to determine possible solutions. However, a problem-
solving approach can take longer to get off the ground. As researchers at the World Resources
Institute have pointed out, with this approach, parties "can become mired in technical details and
political problems and may even disagree on how to define the problem."1 Furthermore, people
generally want to distance themselves from problems, so a problem-solving approach may not
help them create any real fundamental change.2

Visioning Goals and Objectives

Visioning has a more positive approach. Its goal is to help parties identify common goals.
It is a way of moving forward and through, rather than away from, a problem. Visioning tends to
make the parties feel that positive change is possible and that they have more control over the
outcome. This can encourage creative thinking and a greater commitment to the mediation
process.3

With a visioning approach, the mediator asks the parties to think about how they would
like the mediation to end. Basically, it calls on each side to assess its position in relation to the
other, and where each would realistically like to end up.4

For example, during a private caucus, the mediator might ask a party's representative, "If
your one main need could be met, what would that be?" or "What is your prime interest in this
dispute?" The mediator would follow up with like questions that focus attention on the party's
other needs and interests, as well as those of the adversary.

Parties often use emotion-laden terms that communicate anger and frustration when
describing their dispute. Negative feelings like these tend to block creativity and inhibit forward
movement, which is essential to making progress in mediation. The mediator can help the parties
use more neutral language, thereby defusing highly emotional discussions into more productive
negotiations. For example, after asking the two key visioning questions, the mediator might ask
neutral questions that could advance the negotiations. Here are some examples.

1. What fact(s) in your case would you like to change? This question could enable a party to
understand the potential weaknesses in his or her position should the dispute proceed to trial.
2. What would it feel like to be in the other party's shoes? This question could elicit empathy and
a better understanding of the other party's perspective.
3. What do you want [need] in a future relationship with the adversary? This question could help
the party identify possible terms for a settlement, such as a continuing relationship with the
adversary (for example, an employer-employee or vendor-supplier relationship).
4. How do you feel about the dispute?
5. How do you feel about the other party and what he [she] said [did]? What do you really want in
order to resolve this dispute?
6. If you had to prioritize your goals for this mediation, what would they be?
7. Is it important to you to resolve this dispute quickly?
8. What are the potential consequences if you can't resolve this dispute now?
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9. What are your greatest concerns about not resolving this dispute now?

An Assortment of Coaching Skills

Coaches are as important in mediation as they are in sports. They help players reach their
maximum performance. To get the best results from mediation, a mediator should coach the
parties. Coaching is advantageous because it is performance-oriented.5 It is about guiding the
parties and facilitating discussions. Mediators can use coaching to help the parties identify their
needs and interests, find common interests and clarify their mutual goals. There are several
aspects of coaching. These include the following actions.

Acknowledging. In mediation it is essential for the parties to believe that they have been heard.
"Acknowledging" is a type of communication that tells the parties in a non-judgmental manner,
"I've heard you. Please continue."

Attending. Body language is an important means of communicating in life and in mediation.

"Attending" is body language that communicates that attention is being paid. It includes such
gestures as nodding the head, leaning forward, and making eye contact. Certain facial expressions
can also communicate this message.

Affirming. People feel better when they receive positive feedback. "Affirming" in mediation is a
means of providing such feedback. An example might be, "I'm glad that you have leveled with me
about...." "I appreciate that point and would like to hear more." Affirming communicates to a
party that what it has done or said has value.

Confirming. Mediation is unlikely to be successful when there are misunderstandings. Mediators

use the technique of "confirming" to repeat key points a party has made (or ask the party to do so)
to make sure that the mediator understands what has been stated.

Pinpointing. Many facts can be involved in a dispute that comes to mediation. Sometimes a
relevant fact may be overlooked or its significance underestimated. Pinpointing is a technique
that the mediator can use to supply specific information. For example, "You've indicated that the
contract was two years old...."

Probing. Rarely does the mediator have all the information needed at the outset of the mediation
to facilitate the parties' negotiations. Probing is what mediators do to obtain additional
information from the parties. By asking probing questions, the mediator is often able to unearth
the parties' real interests and needs.

Reflecting. Like "confirming," "reflecting" is a communication skill by which the mediator

paraphrases , a party's statement to indicate an I understanding of what has been I said. This can
reassure a party that the mediator has a clear idea of that party's view of the facts and position on
one or more issues, and the size of the offer or demand the party is willing to make or accept as
part of a settlement.

Reviewing. A mediation is really a cluster of communications, some of which are . more important
than others. Reviewing is a technique by which the mediator goes over the main points of a
discussion and may include items from some of the previous discussions. For example, the
mediator might say, "Let's see what has happened here. First, you've stated that...." By reviewing
what has just transpired, the mediator can determine whether the parties are ready to move
ahead with their discussions. Reviewing can take place at any point during the mediation. It is a
useful technique when a party has digressed or the mediation sessions have been going on for
several days.

Summarizing. Like reviewing and affirming, summarizing is another technique that the mediator
can use to emphasize the key points that have been made. It is essential to communicate to the
parties that the mediator understands each party's point of view and the goals each would like to
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see realized. While summarizing may take place at the end of the caucus, it may be especially
helpful during the caucus when making a major shift in the discussion, such as moving from one
party's version of what happened to the other party's view of the facts. This helps the party know
that the mediator is on the party's wavelength.

The environment of mediation can impede or encourage the parties to bring forth
relevant issues needed to reach an acceptable solution. Some techniques, such as acknowledging
and attending, help create a productive environment in which trust can be developed so that
confidential discussions can take place. Techniques like pinpointing and probing help unearth
issues that can be fully discussed in this environment.6

Coaching with a Purpose

Many conflicts are the result of failing to communicate or misunderstanding each others'
interests or needs. By using coaching skills, mediators can help the parties work through these
miscommunications and misperceptions. X X X

Conclusion

Despite what parties think, there is no "absolute" right or wrong resolution to a dispute.
Using visioning strategies and coaching skills, mediators can create a safe, nurturing environment
in which the parties can learn this, while exploring a variety of options that will enable them to
resolve their disputes while satisfying their most important interests and needs.

(Please see full article for endnotes.)

Guide Questions:
1. Describe the different coaching skills. How can using them be helpful to a mediation
proceeding?
2. Give examples of other neutral questions that a mediator may ask.

Philippine Community Mediation, Katarungang Pambarangay

By: Gil Marvel P. Tabucanon, James A. Wall, Jr., and Wan Yan
2 J. Disp. Resol. 501

I. Background

X X X Currently, mediation appears to be the frontrunner for domestic resolutions. It is applied

to a wide variety of conflicts, including labor-management negotiations, community disputes,
school conflicts, and marital problems. X X X

When applied worldwide to a variety of conflicts, mediation assumes diverse forms. This article
reports on a type of mediation that is probably unknown to most readers the three-person
"Katarungang Pambarangay" panel utilized in the Philippines. X X X

II. Katarungang Pambarangay: Overview

The Katarungang Pambarangay is a three-person mediation in which the mediators are drawn
from volunteers in the barangay. In rural communities, "barangay" refers to "village," while in
cities "barangay" refers to the smallest political unit. Currently, in the Philippines there are
40,000 barangays and therefore 40,000 Katarungang Pambarangay mediation centers. n3 This
tri-party approach to mediation has its counterparts in various other countries. X X X

III. History

X X X
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IV. Operational Structure

The Republic Act 7160 relegated the administration and implementation of the Katarungang
Pambarangay to the local government units, particularly the Municipal Mayor's
office. n19Although the structure of the Katarungang Pambarangay varies somewhat from
barangay to barangay, it essentially has the same features.
[*504]
Within each barangay, a Lupong Tagapamayapa or Lupon (literally "peace congregation") is
established and composed of 10-20 members with a Punong Barangay (Barangay Captain) as
chair and a secretary. n20 Every three years the Barangay Captain selects the Lupon, and any
barangay resident possessing "integrity, impartiality, independence of mind, sense of fairness,
and reputation for probity" may be appointed as a member. n21 When serving as mediators, the
Pangkat members are deemed "persons in authority" as defined in the Revised Panel Code of the
Philippines. n22 This official designation provides the members with power as well as status in
the community. These mediators also serve without compensation, believing that conflict
management within the community is their duty. n23

If a vacancy occurs in the Lupon, the Barangay Captain immediately appoints a qualified person
to hold office for the unexpired portion of the term. n24

The functions of the Lupon are threefold: (1) to exercise administrative supervision over the
mediation panels (Pangkats); (2) to meet regularly once a month to provide a forum for exchange
of ideas among its members and the public on matters relevant to the amicable settlement of
disputes; and (3) to exercise other powers, duties and functions as may be prescribed by law or
ordinance. n25

To reiterate, across the Philippines there are approximately 40,000 barangays. n26 Each of these
establishes a Lupon, or peace-congregation, which has 10 [*505] 20 members. n27 The Lupon
provides members for the mediation panels and oversees their functioning. n28
The Pangkat consists of three members who are to be chosen by the disputants from the Lupon's
membership list. n29 If the disputants should fail to agree on the Pangkat membership, the
selection is made by the Lupon Chairman, who randomly draws from the Lupon membership
pool. n30

The three members constituting the Pangkat elect their chair and secretary. n31 The chairman of
the mediation panel conducts the mediation, and when doing so, he and the other members are
authorized to administer oaths in connection with any matter relating to their
proceedings. n32 The secretary is responsible for serving notices to the parties to a
dispute. n33 The secretary also prepares the minutes of the Pangkat proceedings and submits a
chair-approved copy to the Lupon secretary and to the proper city or municipal court. n34

V. Jurisdiction and Venue

The power of these mediators is underpinned by the stipulation that all intra-barangay disputes
must be channeled through them prior to submission to the court. Specifically, under the law, all
disputes between parties actually residing in the same city or municipality are to pass through the
Katarungang Pambarangay system for amicable settlement. n35 The prior referral of a dispute to
the Katarungang Pambarangay is mandatory before a case can be filed in court. n36The Supreme
Court of the Philippines held that a case filed in court without compliance with prior barangay
conciliation may be dismissed upon motion of the defendant, or the court may suspend
proceedings upon petition of any party and refer the case to the appropriate barangay
authority. n37

Recently, the Philippine Supreme Court expanded the Pangkats' power, by revising the
Katarungang Pambarangay Law as follows: (1) the Lupon's authority to take cognizance of minor
criminal offenses has been expanded from crimes punishable by imprisonment not exceeding
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thirty days or a fine not exceeding [*506] P200.00 (pesos) to those offenses punishable by
imprisonment not exceeding one year or a fine not exceeding P5,000.00; and (2) as to venue,
disputes arising at the workplace where the parties are employed or at the institution where such
parties are enrolled for study, shall be brought to mediation where such workplace or institution
is located.n38

While the Pangkats have jurisdiction over most cases, there are exceptions in the following
circumstances: (1) where one party is the government, or any subdivision or instrumentality
thereof; (2) where one party is a public officer or employee, and the dispute relates to the
performance of his official functions; (3) where the offense is punishable by imprisonment
exceeding one year or a fine exceeding five thousand pesos (P5,000.00); (4) where there is no
private offended party; (5) where the dispute involves real properties located in different cities or
municipalities unless the parties agree to submit their differences to amicable settlement by an
appropriate Lupon; (6) where the dispute involves parties who actually reside in barangays of
different cities or municipalities, except where such barangay units adjoin each other and the
parties agree to submit their differences to amicable settlement by an appropriate Lupon; (7)
where the accused is under detention; (8) where a person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings; (9) where actions are coupled with provisional
remedies such as preliminary injunction, attachment, and delivery of personal property; (10)
where the action may otherwise be barred by the statute of limitations; and (11) in such other
classes of disputes where the President may so determine in the interest of justice or upon the
recommendation of the Secretary of Justice. n39

Any objections to jurisdiction/venue are to be raised in the mediation proceedings before the
barangay leader; otherwise, they are waived. Any legal question which may confront the barangay
leader in resolving objections to venue are to be submitted to the Secretary of Justice, or his duly
designated representative, whose ruling is binding.n40

VI. Procedure

Turning from the jurisdiction and venue for the Katarungang Pambarangay, its procedural steps
are as follows any individual who has a cause of action against another individual involving any
matter within the authority of the Lupon first pays a small filing fee. n41Subsequently, he or she
complains orally or in writing to the Lupon chairman of the barangay. n42 In the next working
day, the Lupon chairman notifies the respondent(s) about the complaint and tells the
respondent(s), the witnesses, and the complainant to appear before him for a mediation within
three days. n43 If the chairman fails to mediate the dispute successfully with [*507] in fifteen
days from the meeting with the parties, he or she sets the date for the Pangkat mediation. n44
The Pangkat convenes no more than three days from its constitution, at the time set by the Lupon
chairman, to hear both parties and their witnesses, to simplify the issues, and to explore all
possibilities for amicable settlement. n45 For this purpose, the Pangkat may issue summonses for
the personal appearance of the parties and witnesses.n46 If a party moves to disqualify any
member of the Pangkat by reason of relationship, bias, interest, or any other similar grounds
discovered after the constitution of the Pangkat, a majority vote of the Pangkat determines
whether disqualification is appropriate, and this decision is final. n47

The Pangkat is to arrive at a settlement or resolution of the dispute within fifteen days from the
day it convenes. n48 This period, at the discretion of the Pangkat, can be extended for another
period which does not exceed fifteen days. n49 In clearly meritorious cases, a longer period may
be set. n50

All proceedings for settlement are public and informal. n51 That is, the proceedings are conducted
in a relaxed, even friendly, atmosphere and they are not bound by rigid or technical rules of court
procedure.n52 However, in certain cases, the Lupon chairman or Pangkat chairman may exclude
the public from the proceedings in the interest of privacy, decency, or public morals. n53
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As mandated by law for the Katarungang Pambarangay proceedings, the parties must appear in
person without the assistance of counsel or representatives, except for minors and people deemed
incompetent, who may be assisted by their non-lawyer next-of-kin. n54

Once there is a mediated settlement, it is written in a language or dialect known to the parties,
signed by the parties, and confirmed in writing by the Lupon chairman or Pangkat
chairman. n55 This signed settlement has the force and effect of a final judgment of a court after
ten days, unless either party repudiates the settlement or files a petition to nullify the award
before the proper city or municipal court.n56
[*508]

If a party wishes to repudiate the signed document, he or she must file a statement with the
Lupon chairman. n57 Such a statement can be made if the consent was vitiated by fraud, violence,
or intimidation; perceived unfairness, however, cannot form the basis of an appeal. n58
If there is no disagreement within the ten-day period, the secretary of the Lupon transmits the
settlement to the appropriate city or municipal court within five days after the ten-day
lapse. n59 In addition, the secretary furnishes copies to each of the parties to the settlement, as
well as to the Lupon chairman. n60 The Lupon enforces the agreement within six months from
the date of the settlement; after six months, the agreement may be enforced by action in the
appropriate city or municipal court. n61

VII. Arbitration Option

One of the unique features of the Katarungang Pambarangay system is its flexibility. Although
primarily intended to help disputants reach amicable settlement through conciliation and
mediation, the system can also provide arbitration should the parties so desire. If arbitration is
the preferred process, all the parties must agree in writing, at any stage in the proceedings, that
they will abide by the arbitration award of the Lupon chairman or the Pangkat. n62 As with the
mediated settlement, the arbitration award is made in writing in the language or dialect known to
both parties to a dispute. n63 This arbitration away may be repudiated within five days upon
certain grounds such as fraud, mistake, violence or intimidation prescribed by the law; if the
award is repudiated, the case will go to trial. n64

The official award from the arbitration must be finalized within ten days after the five-day lapse
period for repudiation. n65 The secretary of the Lupon transmits the arbitration award to the
appropriate city or municipal court within five days from the date of the award and furnishes
copies to each of the parties as well as to the Lupon chairman. n66 As with a mediated agreement,
the arbitration award is [*509] enforced by the Lupon within six months. n67 After six months, it
is enforced by action in the appropriate city or municipal court. n68

VIII. Time Frame

Returning to the mediation facet of the Katarungang Pambarangay, it is worthwhile to reiterate

the time frame for a case. As noted above, a dispute which arises between two parties in the same
barangay must go through the Katarungang Pambarangay process. It cannot go directly to court.
First, the complaint is filed with the Lupon chairman, who has fifteen days to settle it. If he or she
fails to do so, members of the Pangkat are selected and must meet within three days. The Pangkat,
in turn, has fifteen days to mediate and, if it wishes, can take an additional fifteen days. If there is
no settlement, the case is permitted to go to court. In sum, it can take forty-eight days from the
day a complaint is filed until it is settled or released to go to court.

IX. Katarungang Pambarangay in Action

The preceding description of the Katarungang Pambarangay its history, purpose, operational
structure, jurisdiction, venue, procedure and time frame was developed from the legal literature.
To enhance and complement this description, we asked eight Lupon members from different
barangays to discuss several of their most recent cases. These members were identified and
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recruited by the first author and interviewed, in English, via telephone by the second and third
authors. While we did not ask the members about their day jobs, we inferred from our
conversations that they haled from various levels of society; specifically, some were housewives,
businessmen, farmers, teachers, and skilled laborers. None were attorneys. During the interviews,
these mediators described the disputants, the underlying dispute, and the specific actions taken
by the Pangkat members to resolve the dispute.

A. Disputes

The Pangkat members mediated a variety of cases, which seemed to include every type of dispute
that could arise in a community. Specifically, the disputes included divorce, spousal abuse, child
abuse, theft, assault, land disputes, contract disputes, child abandonment, public drunkenness,
slander, and sexual misconduct.

As previously noted, the Katarungang Pambarangay is officially expected to handle criminal cases
that could result in prison sentences of a year or less and civil cases that have a value of P5,000 or
less. For example, it would handle a case in which a person inflicted physical injury upon another
person, with the intent to kill, resulting in the victim's incapacitation for one month.
[*510]

B. Case Routings

Though the procedure varies from barangay to barangay, the Lupon chair first considers the case
and routes the minor civil or criminal cases to a three-person Pangkat panel that specializes in
"small" cases. Major criminal cases are taken directly to the police, who at times mediate them in
order to settle the disputes out of court. The chairman will vigorously attempt to mediate the
moderate-level criminal cases. If the mediation fails, the chairman will pass the case to the
Pangkat/three-person panel. At times, the Lupon chairman will often personally mediate the
large, complex, high-value civil cases. For example, in a dispute over where a land border lay, the
chairman heard from the disputants, had the land surveyed, listened to witnesses, brought in an
influential third party to advise the parties, and engaged in some of his own arm-twisting.

It is also worth noting here that the disputes will at times be brought to the Lupon chairman by
one party, and the chairman will take several steps prior to contacting the second party. For
example, when a local official brought a child abandonment case to the chairman's attention, the
chairman immediately contacted the father, the first party. In a meeting with the father, the
chairman told him he was a criminal, that he was supposed to support the child, and that he was
to apologize to his wife. Subsequently, during a meeting with his wife, the husband indicated he
had made a mistake in abandoning his parental responsibilities, accepted his responsibility, and
signed an agreement to support the child.

C. Pangkat Structure

When a dispute is channeled to the Pangkat, an extensive amount of local, grass-roots variations
emerge. Officially, the Pangkat is supposed to consist of three members, but in some barangays
for unknown reasons the number is four. This arrangement seems to function well for family
disputes, as the two male mediators can place pressure on the male disputant, and the two female
mediators can place pressure the female disputant.

A second detour from the official rules is evident in the selection of the Pangkat panel. Officially,
the disputants are supposed to choose the Pangkat panel members from the Lupon pool. Our
interviews indicate that frequently, the Pangkats are previously established panels that handle the
cases routed their way. They are not formed, or reformed, for each dispute.

D. Pangkat Procedure
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After the case has been filed with the Lupon chairman and the chairman has attempted,
unsuccessfully, to mediate the case, the case is assigned to the Pangkat. The Pangkat secretary
then schedules the case for mediation. Prior to the appointed hour, the Pangkat meets, learns
which cases will be heard, and in some cases, prays. Typically, the prayer is that the Holy Spirit
will be present, guide the mediators, and give enlightenment to the disputants. Once the
disputants have arrived (without lawyers), the chair of the Pangkat explains the role of mediators
and the mediation rules. He may call for a prayer, and then he asks the plaintiff to state his case.
Subsequently, the panel members may ask any questions they like.
[*511] While the plaintiff is speaking, the defendant waits outside the room or remains silent in
the room.

When the mediators feel they adequately understand the plaintiff's side and background, they call
upon the defendant to give his or her version of the dispute. As the defendant does so, the plaintiff
is to remain silent. However, the party that is to remain silent sometimes interrupts and becomes
very emotional. Therefore, the mediators may have to raise their voices to bring the situation
under control.

After both sides have stated their case, the mediators perform their own legal sorting. Most
property cases are sent to court because of their complexity, but for the simple property cases, a
survey may be ordered and the case retained by the Pangkat. Physical injury, automobile, torts,
insults, minor thefts, property damage, family relations and irritating neighbor cases are retained
by the Pangkat.
In these latter cases, the Pangkat panel proceeds with two general strategies to resolve the dispute
it informs the disputants, by comparing mediation to the court system, why Pangkat mediation is
preferable, and it determines which party is right and which is wrong.

E. Strategies

The "comparison to the courts" strategy is quite simple. The mediators emphasize to the
disputants that the delay, irritation, cost, and embarrassment of going to court makes the court
option less favorable than a mediated settlement. Resorting to the court is also criticized as
foolish because, instead of controlling their own fate, the disputants are placing their futures into
the hands of strangers who may not understand the problem or their customs. There is the risk
that anything can happen in court. And there is one's obligation to society if all people take their
cases to court, it causes delay and a lower quality of justice for everyone.

The second mediation strategy is to determine who is right and who is wrong. To Western ears,
this strategy assigns labels of "winner" and "loser." But to the Pangkat mediators, this method has
a different connotation. The mediators often determine who is right so he or she can be pressed to
modify his or her legitimate claims and forgive the loser. The loser is to be identified so that he or
she can apologize, have his or her guilt alleviated, and perhaps have his or her obligations
reduced. Therefore, in the Pangkat mediation, the winner becomes a loser; the loser becomes a
winner; and both are winners because they do not need to litigate their dispute.

After determining who is right and who is wrong, the mediators will sometimes announce that
there is a win-win resolution. For example, in a case where a loan had not been repaid, the
mediators acknowledged that the lender deserved to be repaid the interest on the loan but
persuaded the lender to accept the return of the principal but to forgo the accumulated interest.
Therefore, the borrower won because he did not have to pay the interest, and the lender won
because he received the principal.

When pursuing either strategy comparing mediation to court and determining who is right or
wrong the mediators perform an evaluative function, utilizing moral and religious standards, in
addition to laws, to evaluate the disputants' behaviors. But when they find a legal violation or
standard, they unequivocally [*512] emphasize the law, with comments such as, "you committed
a felony assault and could spend almost a year in prison for what you did."
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Interestingly, the Pangkat members will often take their mediations outside the mediation room.
For example, in one case, the female plaintiff refused to settle in the mediation. Therefore, the
panel extended the case by fifteen days. Prior to the next mediation, a female member of the
Pangkat approached the plaintiff at church and urged her to be charitable by consenting to a
settlement.

X. Summary and Discussion

As noted in the introductory paragraphs, one of the goals of this article is to describe Katarungang
Pambarangay in order to expand our knowledge about mediation.

Our research indicates that the Katarungang Pambarangay is a highly structured grass-roots
community mediation process instituted to enhance the quality of justice in the Philippine legal
system by reducing congested court dockets. It also promotes justice by allowing people to
amicably resolve their own disputes with the assistance of barangay neighbors.

When compared to community mediation approaches elsewhere in the world, the Katarungang
Pambarangay has three unique characteristics. First and most obvious it utilizes three mediators,
whereas most mediations rely upon one. In most societies, the reason for a single mediator is
somewhat self-evident the mediations tend to be quicker. Also, it is easier for the disputants to
take the conflict to one person rather than round up a team of mediators. Single-person
mediations also tend to be less expensive. And mediators, it seems, prefer to work alone, because
it is easier to handle the dispute between parties rather than to broach the two-fold task of
handling the disputants' disagreements and coordinating efforts with another mediator.

The second rather unique aspect of the Katarungang Pambarangay system is that it is compulsory.
In most societies, disputants seek out mediation on their own because it is the traditional way to
solve disputes, it is less expensive than adjudication, it is less time-consuming, and it is less
embarrassing than going to court.

Lastly, perhaps the most interesting aspect of Katarungang Pambarangay is that attorneys are
banned from the mediation, whereas in most societies they are permitted. The purpose of
banning lawyers is not addressed in Philippine law. Perhaps the legislators wished to empower
and encourage the disputants to solve their own conflicts, or perhaps the goal was to reduce costs.

The combination of these unique features provides three benefits for the Philippine legal system.
First, the mediation process is efficient, in that the mediations are conducted quickly and
inexpensively. Second, few disputes go to trial. The rigidity of the system more or less dictates this
because the rules require that almost all cases go to mediation prior to trial. Once in mediation,
the three Pangkat mediators are narrowly focused on the settlement goal, and they want very few
cases to work their way to the court docket. In fact, there are even competitions among barangays,
with awards given to those who resolve the most disputes. The power structure underpins the
dogged pursuit of this goal by giving the mediators considerable power over the disputants.

However, the system is also flexible, because the disputants can determine what the agreement
will be. Therefore, they [*513] feel empowered, amicably disposed toward the mediators as well
as their opponent, and committed to implementing the agreement.

The third, and perhaps most valuable benefit, is the absence of a win-lose context in which the
disputants feel like winners or losers. As we noted earlier, the losers become winners. The
disputants may feel mistreated in the process, but usually they perceive that the opponent
received similar treatment. In U.S. and other civil mediations, the disputants, despite the best
efforts of the mediators, often perceive that there is a winner and a loser. With this perception,
both of the disputants are likely to feel somewhat dissatisfied with the mediation.

While the Katarungang Pambarangay has multiple advantages and functions well in the
Philippines, it would be difficult to implement in the United States because of three cultural
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differences. The first dissimilarity is that people in the U.S. value their privacy; therefore, they
take a dim view of having community members' being informed about their disputes and publicly
proffering resolutions.

A related difference is that Americans view themselves as individuals not as members of a larger
collective who own their disputes and have the right to resolve them.

A third cultural difference is that U.S. citizens have a very strong tradition of taking disputes to
court. Enthusiastically, they enter, embrace, and battle within the adjudicative process. The
primary motivator for doing so is their perception that adjudication is a type of legal contest in
which each disputant has an opportunity to prove that he or she is right. In the courts, one can
compete with and beat the opponent, rather than negotiate or participate in a mediation, which
might appear weak.

XXX

(Please see original article for footnotes)

Guide Questions:
1. How is mediation in the barangay done in the Philippines? What is the procedure? Who are
the people involved?
2. What cases are required to be brought first to the barangay before a case can be heard in court?
Do you agree that this kind of mediation should be compulsory?
3. Do you agree that lawyers should not be allowed to be part of the mediation proceedings in the
barangay?
4. What strategies have barangay mediators employed to resolve cases brought before them?
5. Is there one good model for mediation? Why? If yes, describe the model.

International Arbitration: Basic Principles and Characteristics

by Stavros Brekoulakis
http://www.qfinance.com/operations-management-best-practice/international-arbitration-basic-principles-and-characteristics?full

Executive Summary

International arbitration is a contractually based dispute resolution mechanism that offers an

alternative to national courts.

International arbitration has experienced a remarkable growth in the last three decades, due to its
unique advantages over litigation.

The advantages of arbitration include privacy and confidentiality of proceedings, procedural

flexibility, and high rates of enforceability of arbitral awards.

Despite its many advantages, there is growing concern that arbitration is becoming increasingly
expensive and time-consuming. This concern, although not unfounded, is often overplayed.

Ultimately, it is down to the users of arbitration to draft effective arbitration agreements and to
put an effective arbitration procedure in place.

To arrive at a successful resolution of disputes through arbitration, the parties involved should
pay particular attention to the choice of arbitrators and the arbitration institution, and, most
importantly, give due consideration to the drafting of the arbitration agreement.

Definition and Distinctive Features of Arbitration

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International arbitration can be defined as a specially established mechanism for the final and
binding determination of disputes concerning a contract between two or more parties that has an
international element. The disputes are determined by independent arbitrators in accordance
with standards and procedures chosen by the parties involved in the dispute.1

The distinctive feature of arbitration is that it is a private dispute resolution mechanism, which
nevertheless provides arbitrators with judicial power. More specifically:
arbitration is a private dispute resolution method, in which the arbitrators’ mandate to resolve a
dispute derives from a contract (i.e., an arbitration agreement or arbitration clause).
arbitrators have the power to deliver an award that finally resolves the dispute that is binding on
the parties.

The above characteristics of arbitration distinguish it from the following.

Litigation proceedings before national courts. In litigation, national courts are an expression of
state power and they are bound to apply the rules and procedures of the state they are attached to.
National judges owe allegiance to their state and they have limited or no discretion to deviate
from the procedural codes and rules of that state. By contrast, in arbitration parties are free to
determine how the proceedings are to be conducted, subject only to minimum safeguards (due
process). Party autonomy is a fundamental principle in arbitration, which gives the parties the
opportunity to tailor the proceedings in accordance with their commercial needs and the special
characteristics of the case. Arbitrators are private judges whose mandate is determined by the
arbitration agreement concluded by the parties, and who owe allegiance to the parties that have
appointed them rather than to a state.

Alternative dispute resolution (ADR) methods. Despite the fact that their authority derives from a
contract, arbitrators have the power to grant an award, which is a final decision that is binding on
the parties. Arbitral awards are enforceable in the same way that national judgments are.
Therefore, arbitration must be distinguished from other forms of ADR, such as mediation. Here,
as in arbitration, a third party (mediator) is involved in the resolution of the dispute between the
two commercial parties. However, the mediator has no power to impose a decision on the parties.
Mediators work with the parties to resolve their dispute by an agreement; they cannot issue a
binding decision. Thus, the outcome of a successful mediation is a settlement rather than an
enforceable award.

Different Forms of Arbitration

There are two basic types of arbitration: ad hoc and institutional. Parties are free to choose
between these two types in their arbitration agreement. If the parties fail to specify in their
agreement which type of arbitration they prefer, the arbitration will be presumed to be ad hoc.
Ad hoc arbitration is an arbitration that is specifically designed by the parties for a particular
dispute. Here there are predetermined rules for the arbitrators to rely on when conducting the
proceedings (although sometimes the United Nations Commission on International Trade Law
(UNCITRAL) arbitration rules are used). Thus, it is up to the parties to determine the proceedings
and to the arbitrators to fill any gaps. Ad hoc arbitration is more flexible than institutional, as the
parties are completely free to adapt the proceedings to the particulars of the case. It can also be
less expensive than institutional arbitration, as the parties avoid the fees of the institution and
they can negotiate the fees of the arbitrators. However, for an ad hoc arbitration to work, the
parties must have provided for a clear set of proceedings in advance, as there are no institutional
rules to fall back on if they disagree on the arbitration process after the dispute arises.

Institutional arbitration is an arbitration that is conducted under the auspices of a particular

arbitration institution and in accordance with the rules of that institution. Institutional
arbitration is more popular among international parties.2This is because the parties feel more
comfortable with experienced institutional administrators (known as “case managers”) who are
willing to take care of any issue that might arise during the proceedings. Parties are also attracted
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by the reputation and the strong brand name of many established arbitration institutions, which,
as many parties believe, increases the enforceability of an arbitration award. The most popular
institutions are the International Chambers of Commerce (ICC), the London Court of
International Arbitration (LCIA), the American Arbitration Association (AAA), and the Stockholm
Chamber of Commerce.3

Advantages of International Arbitration

International arbitration has experienced a remarkable growth in the last three decades, and it is
now perceived as the natural dispute resolution mechanism for disputes arising out of
international transactions.

The remarkable growth of arbitration is due to the following advantages compared to national
litigation and other ADR methods:

Privacy and confidentiality: Unlike litigation proceedings that take place in public, arbitration
proceedings are private and, unless the parties agree otherwise, they remain confidential. Thus,
the existence of the arbitration, the evidence and the documents exchanged in the arbitration, and
the final award cannot be divulged to third parties. The duty of confidentiality is binding on the
arbitrators, the parties, and their counsel, and it is considered an important commercial
advantage of arbitration.

The parties appoint the arbitral tribunal: Unlike litigation, where the dispute is determined by
national judges appointed by the state, in arbitration the parties have the opportunity to appoint
those who will decide on the dispute (i.e., the arbitrators). Usually, arbitral tribunals consist of
either one arbitrator, who is chosen by both parties, or three arbitrators, where each party
appoints one arbitrator and a chairman is then chosen by the two party-appointed arbitrators.
The fact that the parties may participate in the constitution of the tribunal enhances their
confidence in the arbitration process, as they can appoint arbitrators who are familiar with their
legal or cultural background. It also gives the parties the opportunity to select arbitrators who
have the expert knowledge required by the particular characteristics of the dispute. For example,
an engineer or an architect is often appointed as an arbitrator to determine a complex
construction dispute.

Enforceability of arbitral awards: International arbitration awards are more easily enforceable
than national judgments. This is due to the 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, which has now been signed and ratified by 143
countries. The New York Convention has thus established an internationally harmonized regime
for the enforcement of arbitral awards, where recognition and enforcement are only exceptionally
disallowed on limited grounds. By contrast, there is no international convention that enables the
enforcement of national judgments.

Procedural flexibility: Arbitration proceedings are determined by the arbitration agreement of the
parties. Thus, the principle of party autonomy provides parties with considerable liberty to tailor
their own dispute resolution process in accordance with their needs and the particulars of their
dispute. Therefore, procedural flexibility and party autonomy make arbitration the most suitable
dispute resolution mechanism for international commercial transactions.

Neutrality: Arguably this is the most attractive feature of international arbitration. Proceedings
generally take place in a country with which neither party has links; the dispute is determined in
accordance with transnational rules, or according to the national law of a neutral country; and
arbitrators are appointed from different countries and with different nationalities. Neutrality is of
utmost importance in the context of international arbitration, where each party wants to avoid a
national court of its co-contractor.

Areas of Concern
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Arbitration has always been considered a quicker and less expensive means of dispute resolution
than national courts. Although in theory and in many cases this is still so, there is growing
concern that arbitration proceedings are becoming increasingly costly and time-consuming.
International arbitration is now widely perceived to be even more expensive than litigation.4 The
international arbitration community is concerned about these issues, and arbitration institutions
have issued guidelines for the parties and the arbitrators to reduce the time and cost of arbitration
proceedings.

Costs related to arbitration can be divided into two groups: Fees for the counsel; and arbitration
costs, which include the fees of the arbitrators, the administrative fees of the institution (if the
arbitration is institutional), and expenses related to the hearings (hiring the venue, translation
costs, traveling costs for the witnesses, fees for the experts appointed by the tribunal, etc.).
Ultimately, arbitration is a party-led mechanism, and therefore it is up to the parties, who also are
the fee payers, to take the necessary steps for the proceedings to take less time and money.

Increasing the Chances of Successful Arbitration

Here are some of the factors that parties should consider to arrive at a successful resolution of
their disputes through arbitration:

Appoint the right arbitrator: Parties should look for arbitrators who are available to embark on
the proceedings quickly. Many arbitrators have a busy schedule, which inevitably will lead to
delays in the hearings and the issuance of the final award. Parties are advised to do thorough
research before selecting their arbitrators. Nowadays it is general practice for parties to interview
potential arbitrators and gather information relating to their previous work. The number of
arbitrators appointed may also impact the cost of the proceedings. A panel of three arbitrators
will normally improve the quality of the award and reduce the risk of an arbitrary decision.
However, three-arbitrator tribunals will generally be more expensive and time-consuming as it is
more difficult to convene meetings, arrange hearings, or reach a final agreement when three
arbitrators are involved.

Choose the right arbitration institution: Parties should be aware that while in ad hoc arbitrations
parties may negotiate the arbitrators’ fees, in institutional proceedings fees are calculated in
accordance with predetermined rules. Different institutions have different methods for
calculating arbitrators’ fees. For example, the LCIA’s rules set out a recommended range of hourly
rates which may only be deviated from in exceptional circumstances, while under ICC rules the
arbitrators’ fees are calculated as a proportion of the sum in dispute (the so-called ad
valorem method). Thus, parties are advised to look into the methods that different institutions
use to calculate arbitrators’ fees before deciding which institution they should submit their
dispute to.

Draft efficient arbitration clauses: Parties often focus on the substantive clauses of their contracts
but pay little attention to the arbitration clauses. Arbitration clauses are usually the last
provisions to be incorporated in a contract, and they are drafted without debate or much
consideration of the specific needs of the particular contract. Ambiguous arbitration clauses will
most likely result in lengthy litigation, causing delays and increasing the cost of the arbitration
proceedings. Parties are advised to draft clear arbitration clauses that set out an effective and
rapid set of arbitration proceedings (see the Making It Happen section).

Make use of technology: As mentioned above, arbitration proceedings are flexible and can be
specifically designed to suit the particular case. There is no need for the hearings to be conducted
in person at a particular venue. Arbitrators and parties are advised to make use of technology in
order to reduce the costs of the proceedings. For example, arbitration hearings, including witness
and expert examination, may be conducted via video-conference; and documents, including the
submissions of the parties, may be communicated by email or other convenient means.

Making It Happen
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Drafting Effective Arbitration Clauses

Ill-drafted arbitration clauses can prolong litigation proceedings and thwart the resolution of a
dispute in a quick and efficient way. In order to draft effective arbitration clauses, parties should
consider the following points carefully:

The intention to arbitrate must be clearly and unambiguously stated in the arbitration clause.
Avoid permissive language such as “parties may submit any dispute to arbitration.”
It should be stated clearly whether the arbitration is to be ad hoc or institutional. If the parties opt
for an institutional arbitration, it is very important that unambiguous reference is made to an
arbitration institution that exists (see the Case Study). If ad hoc arbitration is chosen, the seat of
the arbitration must be clearly stated.

The safest solution is for the parties to use one of the arbitration clauses recommended by well-
known arbitration institutions. However, parties should not attempt to modify these set
arbitration clauses, as there is a risk that the clause will be rendered unenforceable.

Here, for example, is the arbitration clause recommended by the ICC: “All disputes arising out of
or in connection with the present contract shall be finally settled under the Rules of Arbitration of
the International Chamber of Commerce by one or more arbitrators appointed in accordance with
the said Rules.”

Case Study

Ill-Drafted Arbitration Clauses Result in Further Litigation

The parties in Lucky Goldstar v Nag Moo Kee Engineering (High Court of Hong Kong, 1993) had
included the following arbitration agreement in their contract: “Any dispute or difference arising
out of this contract shall be arbitrated in a 3rd Country, under the rule of a 3rd Country and in
accordance with the rules of procedure of the International Commercial Arbitration Association.”
This was a “pathological” arbitration clause that made no sense, for the following reasons:
The institution provided for in the clause, namely the “International Commercial Arbitration
Association,” did not exist.

No seat of arbitration was specified; the rather ambiguous reference to “a 3rd Country” made no
sense; and there was no indication which this “3rd Country” might be.

Therefore, when a dispute arose over the contract, the parties could not commence arbitration
proceedings as there was no arbitration institution to which the parties could submit their
dispute. Inevitably, therefore, the parties had to resort to a national court, which came up with a
rather creative interpretation of the ambiguous arbitration clause in order to give effect to the
parties’ original intention to submit their dispute to arbitration. The High Court of Hong Kong
held that since there was no “International Commercial Arbitration Association,” the parties
should be referred to the best-known international arbitration institution, which it judged to be
the ICC.

It is, of course, fortunate in this specific case that the national court managed to give meaning to
and enforce this ill-drafted arbitration agreement. However, the parties eventually lost time and
money, as they had first to resort to a national court before finally starting arbitration
proceedings.

Notes
1 Lew, Mistelis, and Kröll, Comparative International Commercial Arbitration(2003), para 1-1.
2 In a survey conducted by the School of International Arbitration, Queen Mary University of
London, and PricewaterhouseCoopers, entitled “International arbitration: Corporate attitudes
and practices 2006,” it was found that 76% of parties prefer institutional arbitration to ad hoc
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arbitration. This study and a second published in 2008 are available online
at:www.pwc.com/arbitrationstudy.
3 See the above study for a list of the popularity of the various arbitration institutions.
4 In the 2006 survey mentioned in note 2, it was found that 65% of respondents perceived
arbitration to be more expensive than litigation.

Futher Reading
Born, Gary. International Arbitration and Forum Selection Agreements: Planning Drafting and
Enforcing. 2nd ed. The Hague: Kluwer Law International, 2006.
Lew, Julian D. M., Loukas A. Mistelis, and Stefan Kröll. Comparative International Commercial
Arbitration. The Hague: Kluwer Law International, 2003.
Redfern, Alan, and Martin Hunter, with Nigel Blackaby and Constantine Partasides. Law and
Practice of International Commercial Arbitration. 4th ed. London: Sweet & Maxwell, 2004.

Guide Questions:
1. What is International Arbitration?
2. What are the characteristics of arbitration?
3. Distinguish arbitration from litigation in the courts.
4. Distinguish arbitration from other forms of ADR.
5. Compare the two basic types of arbitration.
6. What are the advantages of international arbitration as compared to litigation?
7. What are developing areas of concern in international arbitration?
8. What factors should be considered to arrive at a successful resolution of disputes through
arbitration?
9. Discuss the factors that should be considered in drafting effective arbitration clauses.

Selected Laws Relating To Alternative Dispute Resolution In The Philippines

1. Alternative Dispute Resolution Act of 2004, Republic Act 9285

2. Implementing Rules and Regulations of the Alternative Dispute Resolution Act of 2004,
Deparment Circular No. 98 (Series of 2009)

3. Special Rules of Court on Alternative Dispute Resolution (1 September 2009)

4. The Arbitration Law, Republic Act 876

5. Construction Industry Arbitration Law, Executive Order No. 1008, Series of 1985

6. Model law on International Commercial Arbitration adopted by the United Nations

Commission on International Trade Law (21 June 1985)

7. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(approved 1958, ratified by Philippine Senate under Senate Resolution No. 71)