Alternative Dispute Resolution

The Philippine Law allows the use of Alternative Dispute Resolution in resolving conflicts through the
enactment of RA 9285 also known as Alternative Dispute Resolution Act of 2004. So, what is Alternative
Dispute Resolution?

As defined under Section 3 of the said act, "Alternative Dispute Resolution System" means any process
or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of
a court or an officer of a government agency. This encourages resolving of disputes without litigation
which might save costs and time for the parties involved.

RA 9285 was enacted with the following purposes:

• To promote party autonomy in the resolution of disputes or the freedom of the party to make
their own arrangements to resolve their disputes.

• To achieve speedy and impartial justice.

• To declog court dockets.

Section 2 of RA 9285 identified three methods of ADR namely, Mediation, Conciliation and Arbitration.

Mediation

Mediation is defined in the definition of terms of RA 9285 under Section 2 which refers to a voluntary
process in which a mediator, selected by the disputing parties, facilitates communication and
negotiation, and assist the parties in reaching a voluntary agreement regarding a dispute.

Sometimes, mediation and conciliation are used interchangeably because both methods seek the help of
a facilitator in conducting a dispute resolution. However, what makes them different from each other is
the role of the facilitator.

Role of Mediator

Under Mediation, the facilitator is called “Mediator” which primary role is to assist and guide the parties
towards their own resolution. The mediator does not decide the outcome, but helps the parties
understand and focus on the important issues needed to reach a resolution. In simplest term, the
mediator helps both parties understand the reason of their differencing views leading them to a mutual
agreement.

Steps in Mediation

The following are the steps in conducting the Mediation Method:

 First is the Planning stage where the mediator sets where the mediation will take place and
determine who will be the attendees.
 Next is the Mediator’s introduction where the mediator introduces himself as well as states his
neutrality and the confidentiality of the session, introduces the participants and outlines their roles,
presents the mediation process and lays out ground rules.
 Followed by Statement of Problem by the Parties where both sides are given a chance to tell their
story and vent their emotions. Most often, the person who requested the mediation session will go
first. The statement is not necessarily a recital of the facts, but it is to give the parties an
opportunity to frame issues in their own mind, and to give the mediator more information on the
emotional state of each party. The rationale behind the statement of the problem is not a search
for the truth; it is just a way to help solve the problem.
 Once the story of both sides are heard, the mediator will now involve the disputing parties in a joint
discussion where he asks open-ended questions to get to the emotional undercurrents. Since
disputing parties are having hard time listening to each other the mediator may serve as translator
by repeating back key ideas to the parties and asks for clarification when necessary. This the stage
where they understand or try to determine why both parties have different point of view. This
helps the mediator build rapport between the parties.
 Lastly, once the conflicting parties are committed to achieve negotiated settlement, the mediator
will now let them reach into an agreement. Here, the mediator will propose a brainstorming session
to explore potential solution or will propose a solution where both parties will agree on. This can
lead to a final agreement, which diffuses the conflict and provides a new basis for future relations

Benefits of Mediation

The process of mediation is a guided negotiation, which parties attempt to negotiate a resolution of
their dispute, aided by a mediator. Settling disputes through mediation can save money, eases the court
load and more often than not it leaves parties in a better state of mind. There are a number of other
significant benefits of mediation and they include:

Greater Control. Mediation increases the control the parties have over the resolution. Each party are
directly involved in negotiating their own agreement and no settlement can be imposed upon you. In
comparison, dissatisfaction is often experienced in court where parties have little choice but to accept
the judgement made, which they may not be happy with.

Its confidential. Unlike the potential publicity of court proceedings, everything said at the mediation is
entirely confidential to the parties (unless specifically agreed otherwise).

Its voluntary. Any party may withdraw at any time.

Convenience. The mediation is arranged at a venue convenient to the parties, who each have their own
room as well as a separate room for joint meetings. The Mediator listens to everyone’s view, talks to the
parties privately and together, guiding them towards a settlement.

Reduced Costs. Generally the cost is greatly reduced in comparison with trying to settle the matter
through court. Traditional litigation is very expensive and the total cost is highly unpredictable.

Faster outcome. Because mediation can be used early in a dispute, an agreement can usually be
reached quicker than if pursuing through the courts.

Support. Mediators are trained in working with difficult situations. The mediator acts as a neutral
facilitator and supports each party through the process.
Preservation of Relationships. Whether it may be a business or family dispute, preservation of
relationships can be a key benefit of mediation. Mediation helps participants focus on effectively
communicating with each other as opposed to attacking each other.

CONCILIATION

As stated in RA 9285, another method of Alternative Dispute Resolution is Conciliation. Lots of people
think that both mediation and conciliation are the same but in reality, they are not. They may overlap at
some point but both are unique from each other. So we will discuss to you what makes conciliation
different from other methods. Let’s start with its definition.

Conciliation is defined as a procedure of Alternative Dispute Resolution where the parties involved
appoint a third party from mutual consent who then drafts an agreement of resolution after initiating
communication, discussion and negotiation between the parties for a solution. Highlighted here is the
role of the facilitator in reaching for a resolution which sets conciliation apart from mediation.

Role of Conciliator

The facilitator of a conciliation is called “Conciliator”. In this method, the conciliator do not only make
the party communicate with each other but also help the parties in resolving their dispute by suggesting
plausible solutions for the issue and making party agree upon it. Thus, if in mediation, the mediator acts
as facilitator who initiates dialogue and communication between the parties, the role of the conciliator
goes beyond that of a facilitator as he do not only ensure communication between the parties but also
suggest possible solution to the problem as an expert.

Steps in Conciliation

The following are the procedure in executing a conciliation:

 First is the Preparation and Conciliator’s Opening Statement which includes a brief description
of the conciliator and participants, the conciliation process and any ground rules.
 Followed by the Parties’ Statements where each party or their representative provides a
statement about the dispute from their perspective. Emerging interest, needs and options for
resolution are acknowledged for later use in the conciliation.
 Next step is the Joint Exploratory Session and Discussion where the conciliator will take part
actively, summarizing views and options and may also discuss with the parties the strength and
weaknesses of their case. Here, the conciliator encourages parties to communicate directly with
each other and the parties’ interests are further clarified. This provides the basis for joint
problem solving, raising options for agreement and may be followed by further joint sessions
when necessary.
 Private Meeting is the next step where the conciliator may hold private meetings with each of
the parties. The conciliator may reality test alternatives and options and comment about
potential outcomes and the strength and weaknesses of each party`s case.
 And last but not the least is the Concluding Joint Session where the conciliator assists the
parties to narrow the issues in dispute arriving to final negotiation and fine-tuned agreement.
Benefits of Conciliation

Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties
seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a
neutral third party. Below are main benefits of using Conciliation method as Alternative Dispute
resolution:

 Conciliation ensures party autonomy.

The parties can choose the timing, language, place, structure and content of the conciliation
proceedings.

 Conciliation ensures the expertise of the decision maker.

The parties are free to select their conciliator. A conciliator does not have to have a specific
professional background. The parties may base their selection on criteria such as; experience,
professional and / or personal expertise, availability, language and cultural skills. A conciliator
should be impartial and independent.

 Conciliation is time and cost efficient.

Due to the informal and flexible nature of conciliation proceedings, they can be conducted in a
time and cost-efficient manner.

 Conciliation ensures confidentiality.

The parties usually agree on confidentiality. Thus, disputes can be settled discretely and
business secrets will remain confidential.

ARBITRATION

The third and last method of Alternative Dispute Resolution that our group will be discussing is
Arbitration. This method is comparatively different from the first two methods discussed. For us to see
the difference, let us define first what an Arbitration is.

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more
arbitrators who make a binding decision on the dispute. In arbitration, the composition and number of
the facilitators is determined by the agreement of the concerned parties. Even the procedures in
conducting this method is significantly different from mediation and conciliation.

Role of Arbitrator

In Arbitration, the facilitator is called Arbitrator.

An arbitrator reviews testimony and evidence presented by the disputed parties at a hearing and
resolves the dispute by issuing a decision that may include an award of money. You can think of an
arbitrator as a private judge hired by the disputing parties to resolve their dispute. If the arbitration is
binding, the parties cannot seek a reversal of the decision in court except under very limited
circumstances. However, the successful party can seek help from a court in enforcing the arbitrator's
decision.

An arbitrator serves as the decision-maker and 'referee' in an arbitration proceeding, much like a judge
during court litigation. The arbitrator is bound by the rules outlined in the parties' arbitration
agreement.

Qualifications of Arbitrator are stated in the Section 10 of RA 876 which is the Arbitration Law of the
Philippines.

Steps in Arbitration

Philippine law does not provide for default rules governing the commencement of arbitral proceedings.
Thus, the parties are free to agree on the rules governing the commencement of arbitral proceedings.
Below is a general procedure in performing Arbitration method of Alternative Dispute Resolution:

First in the process is the Initiation and Arbitrator Selection where the Arbitration begins when one
party seeks the help of an Arbitration institution by submitting Demand for Arbitration. The institution
then works with the parties to identify and select an arbitrator based on the criteria determined by the
parties.

Once arbitrator has been determined, the next step will be the Preliminary Hearing where the arbitrator
conducts a preliminary hearing with the parties, to discuss the issues in the case and procedural matters,
such as witnesses, depositions, sharing information, and other matters.

Followed by Information Exchange and Preparation where the parties then prepare for presentations
and exchange information.

Next in line is the Hearing where both parties may present testimony and evidence to the arbitrator.
Unless the case is very complex, this is usually the only hearing before the arbitrator.

After that is the Post-Hearing Submissions where both parties may present additional documentation,
as allowed by the arbitrator.

Upon carefully investigation and evaluation of the submitted testimonies, witnesses and
documentations, the Arbitrator may now proceed with Awarding where the arbitrator closes the record
on the case and issues a decision, including an award, if applicable

Benefits of Arbitration

Parties often seek to resolve disputes through arbitration because of a number of perceived potential
advantages over judicial proceedings. Below are some of the benefits of Arbitration:

 In contrast to litigation, where one cannot "choose the judge", arbitration allows the parties to
choose their own tribunal. This is especially useful when the subject matter of the dispute is highly
technical: arbitrators with an appropriate degree of expertise (for example, quantity surveying
expertise, in the case of a construction dispute, or expertise in commercial property law, in the case
of a real estate dispute) can be chosen.
 Arbitration is often faster than litigation in court.
 Arbitral proceedings and an arbitral award are generally non-public, and can be made confidential.
 In most legal systems there are very limited avenues for appeal of an arbitral award, which is
sometimes an advantage because it limits the duration of the dispute and any associated liability.
 If arbitration is binding, there are very limited opportunities for either side to appeal, so the
arbitration will be the end of the dispute. That gives finality to the arbitration award that is not
often present with a trial decision.


SUMMARY

The Philippine Law encourages settling of conflicts through Alternative Dispute Resolution other than
going in a litigation in order for the involved parties to promote party autonomy and achieve speedy and
cheaper judicial process and to declog the court dockets. As indicated in RA 9285, three methods are
identified that can be used in pursuing ADR name: Mediation, Conciliation and Arbitration.

Comparison Table

Comparison in
MEDIATION CONCILIATION ARBITRATION
terms of:

Subjective facilitation based on

Objective
Procedures Active facilitation testimonies, witnesses or
facilitation
documentations presented

Process for Parties involved find Facilitator proposes

Facilitator issues decision
solution a solution solution

Yes, vested with powers as

Authority of None, only a role of Yes, is seen as
stated in RA 876 “Arbitration
Facilitator guidance authoritative figure
Law”

Settlement
Agreement
agreement, beneficial Beneficial to winning or
Result Desired beneficial to all
and reasonable to all awarded party
parties
parties

One, preferably an
One, act of One or more, decision maker
Facilitator expert on the subject
guidance and referee
of the dispute