Alternative Dispute Resolution as a legal process
The court is the primary haven for justice. In the ideal sense, it ought to be. We go to court to invoke and defend a right, demand for recompense and equity, obtain a redress for a wrong done to us, or simply seek for that much-coveted sense of justice.
But justice through judicial process has nowadays been becoming elusive. The stakes and risks of going to court vis-a-vis the possibility of victory shows a stunning discrepancy. While the stakes are high, the possibility of a positive outcome is very slim. For most of us, going to court is plain-square a risky battle. As one author succinctly puts it, “litigation is a long-winded road to hell.”
Gone are the days though when we could only wish for more practical and sensible options to go about our legal concerns. Before we could frown at the slimming trace of hope for better chances, the process of Alternative Dispute Resolution began knocking into the doors of the legal system.
A process known as Alternative Dispute Resolution, or ADR, has emerged as a practical substitute for litigation. Alternative Dispute Resolution (ADR) is an increasingly popular option that allows people to resolve disputes outside of court in a cooperative manner. ADR has proven to be faster, cheaper and less stressful than going to court. Most importantly, the use of ADR can provide greater satisfaction with the way disputes are resolved.
In our present Philippine legal system, the use of ADR is remarkably gaining importance. Philippine courts are actively facilitating and utilizing the expediency of Court-Annexed Mediation and Judicial Dispute Resolution processes.
The court is the primary haven for justice. In the ideal sense, it ought to be. We go to court to invoke and defend a right, demand for recompense and equity, obtain a redress for a wrong done to us, or simply seek for that much-coveted sense of justice.
But justice through judicial process has nowadays been becoming elusive. The stakes and risks of going to court vis-a-vis the possibility of victory shows a stunning discrepancy. While the stakes are high, the possibility of a positive outcome is very slim. For most of us, going to court is plain-square a risky battle. As one author succinctly puts it, “litigation is a long-winded road to hell.”
Gone are the days though when we could only wish for more practical and sensible options to go about our legal concerns. Before we could frown at the slimming trace of hope for better chances, the process of Alternative Dispute Resolution began knocking into the doors of the legal system.
A process known as Alternative Dispute Resolution, or ADR, has emerged as a practical substitute for litigation. Alternative Dispute Resolution (ADR) is an increasingly popular option that allows people to resolve disputes outside of court in a cooperative manner. ADR has proven to be faster, cheaper and less stressful than going to court. Most importantly, the use of ADR can provide greater satisfaction with the way disputes are resolved.
In our present Philippine legal system, the use of ADR is remarkably gaining importance. Philippine courts are actively facilitating and utilizing the expediency of Court-Annexed Mediation and Judicial Dispute Resolution processes.
The passage of the ADR Act of 2004 (RA 9285) gave force to the diversion of pending court cases to an outside forum. The ADR Act of 2004 declares the State policy to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes, and encourages the use of arbitration and other modes of dispute resolution to achieve speedy and impartial justice and declog court dockets. These same objectives were declared in the Special ADR Rules stressing on the use of ADR, particularly arbitration and mediation, as an important means to achieve speedy and efficient resolution of disputes, impartial justice, curb a litigious culture, and to de-clog court dockets.
Sec. 3 of RA 9285 or the "Alternative Dispute Resolution Act of 2004" defines the ADR System, to wit:
Sec. 3 of RA 9285 or the "Alternative Dispute Resolution Act of 2004" defines the ADR System, to wit:
"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, as defined in this Act, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof.”
The most common forms of ADR are Arbitration and Mediation. In most ADR processes, a trained and impartial person decides or helps the parties reach resolution of their dispute together. Arbitration is a procedure whereby parties submit their controversy to a disinterested person or persons who make a binding determination. It is a substitution, by consent of parties, of another tribunal for the tribunals provided by the ordinary processes of law.
Mediation, on the one hand, is a form of ADR in which an impartial third-party facilitator, the mediator, assists the disputing parties in reaching a consensual agreement. Because this agreement is voluntary, it tends to have greater commitment and compliance than something imposed from the outside. Mediation is more accessible and understandable to the layperson, less adversarial, expensive, and time-consuming, and more likely to produce an outcome that matches the interests of the disputants.
Legal disputes that are covered by ADR include family and civil issues, commercial and consumer disputes, environmental issues, intra-institutional differences, intergovernmental conflicts, and even international confrontations. The broad scope of ADR-facilitated issues signifies the prevalence, portability and growing need of the use of ADR in our present legal system.
The advantages of ADR as means of resolving disputes are note-worthy. And a thorough look into these advantages would lead us into appreciating how ADR in works and aids in the efficient and effective administration of justice.
ADR as a speedy and expeditious process of resolving disputes
ADR, through arbitration or mediation, is often quicker than going to trial. A dispute may be resolved in a matter or days or weeks instead of months or years. It is not uncommon for lawsuits to take several years to conclude. ADR progresses much more rapidly and in some instances may even transpire in hours. The time spent in fact-finding and awaiting a trial is typically much less than in litigation. This extra time enables parties to focus their attention on normal business operations and less on legal disputes.
ADR is also a much less formal process than a trial. The parties can agree upon, or an arbitrator can impose, procedural rules that are better tailored to resolution of the particular dispute, often making the process more flexible and rational than litigation.
And even if a case winds up going to trial, using ADR may significantly narrow the issues that need to be litigated, ultimately making the trial quicker and less expensive.
Nonetheless, there is a denial of justice when civil disputes are resolved by a trial court for five years on the average. The fact is trial court dockets are hopelessly clogged. And there are more cases being filed than are being resolved. These realities are downright debilitating.
The length of time court litigation usually takes can be discouraging on the part of the litigants who desire to have immediate answers and resolutions to their concerns. With the prevailing judicial system nowadays, it is often likely a miracle to obtain justice in a considerable short period of time. And such long period of waiting and going through the winding process could take its toll on the party-litigants. Thus, ADR is without a glitch a better option, if not the most practical one.
ADR is also a much less formal process than a trial. The parties can agree upon, or an arbitrator can impose, procedural rules that are better tailored to resolution of the particular dispute, often making the process more flexible and rational than litigation.
And even if a case winds up going to trial, using ADR may significantly narrow the issues that need to be litigated, ultimately making the trial quicker and less expensive.
Nonetheless, there is a denial of justice when civil disputes are resolved by a trial court for five years on the average. The fact is trial court dockets are hopelessly clogged. And there are more cases being filed than are being resolved. These realities are downright debilitating.
The length of time court litigation usually takes can be discouraging on the part of the litigants who desire to have immediate answers and resolutions to their concerns. With the prevailing judicial system nowadays, it is often likely a miracle to obtain justice in a considerable short period of time. And such long period of waiting and going through the winding process could take its toll on the party-litigants. Thus, ADR is without a glitch a better option, if not the most practical one.
ADR as a cost-saving device for resolving disputes
ADR provides a cost-saving measure for going about the resolution of disputes. Litigation can generate high costs for filing fees, discovery and trial costs, attorney’s fees and legal fees. ADR involves expenses including payment of an administrative fee and fees for any ADR sessions. However, even after payment of these fees and attendant preparation costs, ADR costs are generally far less than those of a trial. Since the period for hearing and decision is fairly short, legal costs are also considerably reduced.
The financial constraints of party-litigants could disempower them in their attempt to advance their cause in courts which call for various and indispensable expenses. With ADR, they need not have to waste money to ensure the progress and eventual disposition of their case. This is simply because the venue for prompt and speedy resolution of their disputes through the processes of arbitration and mediation would certainly entail less expenditures on their part.
ADR as an efficient and participant-friendly mode of resolving disputes
ADR, in the ordinary course of its process, clearly permits more participation and empowerment from the parties. It allows the parties the opportunity to tell their side of the story and have more control over the outcome. It enables them to ease tension and avoid anxiety in going about the advancement of each of their concerns and causes. Because of the privacy of the proceedings, the parties and even the witnesses do not become so tense and nervous and are better able to share their stories.
The financial constraints of party-litigants could disempower them in their attempt to advance their cause in courts which call for various and indispensable expenses. With ADR, they need not have to waste money to ensure the progress and eventual disposition of their case. This is simply because the venue for prompt and speedy resolution of their disputes through the processes of arbitration and mediation would certainly entail less expenditures on their part.
ADR as an efficient and participant-friendly mode of resolving disputes
ADR, in the ordinary course of its process, clearly permits more participation and empowerment from the parties. It allows the parties the opportunity to tell their side of the story and have more control over the outcome. It enables them to ease tension and avoid anxiety in going about the advancement of each of their concerns and causes. Because of the privacy of the proceedings, the parties and even the witnesses do not become so tense and nervous and are better able to share their stories.
It also allows parties for flexibility in choice of ADR processes and resolution of the dispute. At the same time, it fosters cooperation by allowing the parties to work together with the neutral and between themselves to resolve the dispute and mutually agree to a remedy. At such, ADR is often less stressful than litigation. It frees the parties from the inevitable strains, pressures and hassles of court litigation.
ADR as a viable instrument of justice
The most compelling force of ADR as a means of resolving disputes is its propensity to give the parties to a dispute a greater possibility of achieving a win-win situation for both of them. It is how the parties are provided with an appropriate venue that empowers them to negotiate and compromise with each other’s primary concerns and contentions. The parties are given a reasonable leeway in controlling the outcome of their dispute-resolution process. Whatever transpires in the processes they go through, they can always have the option to bargain and make concessions that would be beneficial to both of them.
The winner-take-all system defies logic, encourages lying, and generally brings out the worst in all the participants. A settlement is never imposed by an outside party as is the case in arbitration. And it is that so-called amicable settlement that marks the success of the process and ultimately grant to either party the better end of the deal.
The process in ADR is really simple. That fact is indisputable. There is hardly any question why one would not resort to arbitration or mediation when the case qualifies as a subject for such processes. It becomes a matter only then of how the parties can take advantage of the simplicity, flexibility and practicality of the procedure, and utilize it for the advancement of their causes in order to attain a rewarding outcome for each of them. The most important thing is that ADR gives them greater satisfaction on how their dispute is resolved, and achieving no less a win-win situation for both of them.
ADR as a relevant tool in the effective and efficient administration of justice
The most compelling force of ADR as a means of resolving disputes is its propensity to give the parties to a dispute a greater possibility of achieving a win-win situation for both of them. It is how the parties are provided with an appropriate venue that empowers them to negotiate and compromise with each other’s primary concerns and contentions. The parties are given a reasonable leeway in controlling the outcome of their dispute-resolution process. Whatever transpires in the processes they go through, they can always have the option to bargain and make concessions that would be beneficial to both of them.
The winner-take-all system defies logic, encourages lying, and generally brings out the worst in all the participants. A settlement is never imposed by an outside party as is the case in arbitration. And it is that so-called amicable settlement that marks the success of the process and ultimately grant to either party the better end of the deal.
The process in ADR is really simple. That fact is indisputable. There is hardly any question why one would not resort to arbitration or mediation when the case qualifies as a subject for such processes. It becomes a matter only then of how the parties can take advantage of the simplicity, flexibility and practicality of the procedure, and utilize it for the advancement of their causes in order to attain a rewarding outcome for each of them. The most important thing is that ADR gives them greater satisfaction on how their dispute is resolved, and achieving no less a win-win situation for both of them.
ADR as a relevant tool in the effective and efficient administration of justice
The numerous advantages of ADR and how it remarkably contributes to our legal system are explicit. The proceeding is speedy without sacrificing the right of parties to due process of law. The reception of the evidence submitted by the parties usually employ a fast-track process. The testimony of witness is produced in the form of affidavits and counter-affidavits. The right to counsel and the right to cross-examine witnesses are respected and observed. The strict and rigid application of the rules of evidence under the law concede to a liberal construction thereby allowing parties a considerable leeway in advancing their causes.
In arbitration, the parties have the power, by agreement, to make their own arrangements in resolving their disputes. This is not possible in court litigation, where rigid rules of procedure are observed. Also, the proceedings, including the records, evidence and the arbitral award, being confidential, may not be published except with the consent of the parties or for the limited purpose of disclosing to the court relevant documents in cases where resort to the court is allowed.
The Supreme Court, for its part, has expressly promoted resort to arbitration as a preferred mode of dispute resolution. In several decided cases, the Supreme Court recognized arbitration to be an inexpensive, speedy and amicable method of settling commercial disputes and helps unclog judicial dockets.
The Supreme Court has admonished courts to liberally construe arbitration clauses, and viewed the brushing aside of a contractual agreement calling for arbitration between the parties as a step backward. It, thus, laid down the doctrine that, provided an arbitration clause is susceptible to an interpretation that covers the asserted dispute, an order to arbitrate should be granted and any doubt should be resolved in favor of arbitration.
Indeed, ADR has provided us with a relevant tool in resolving disputes. And it is hardly any doubt that ADR has paved the way to a more efficient and effective administration of justice.
In a nutshell, ADR means faster resolution of cases. Faster resolution of cases means justice in a matter of hours or days. ADR means unclogging court dockets. Unclogging court dockets means justice for many people in a big way.
True enough, justice delayed is justice denied. And with ADR in hand as a viable tool in speedily and satisfactorily resolving disputes, justice is never elusive anymore but soundly real.
True enough, justice delayed is justice denied. And with ADR in hand as a viable tool in speedily and satisfactorily resolving disputes, justice is never elusive anymore but soundly real.
