LEARNING MATERIAL IN DISPUTE RESOLUTION AND CRISES/INCIDENTS MANAGEMENT

PRINCIPLES AND PHILOSOPHIES OF THE DIFFERENT MECHANISMS IN

RESOLVING CONFLICTS/DISPUTES

Lesson 1 CONCEPT OF CONFLICT

Whenever two individuals opine in different ways, a conflict arises. In a layman’s language
conflict is nothing but a fight either between two individuals or among group members. No two
individuals can think alike and there is definitely a difference in their thought process as well as
their understanding. Disagreements among individuals lead to conflicts and fights.
Conflict arises whenever individuals have different values, opinions, needs, interests and
are unable to find a middle way.

For you to understand conflict in a better way

The dissimilarity in the interest, thought process, nature and attitude of Tim and Joe gave rise to a
conflict between the two.

For Example:
Tim and Joe were working in the same team and were best of friends. One fine day, they were asked
to give their inputs on a particular project assigned to them by their superior.
There was a major clash in their understanding of the project and both could not agree to each
other’s opinions. Tim wanted to execute the project in a particular way which did not go well with Joe.
The outcome of the difference in their opinions was a conflict between the two and now both of them
just can’t stand each other.

 The word conflict comes from Latin “conflingere” means to come together for a battle. Conflicts can
either be within one person, or they can involve several people or groups.
 Conflict is defined as a clash between individuals arising out of a difference in thought process,
attitudes, understanding, interests, requirements and even sometimes perceptions.
 A conflict is a struggle between people. The struggle may be physical, or between conflicting ideas.

CONFLICT THEORY
- Created by Karl Marx, the father of communism.
- Society is broken up into two groups, a controlling (dominant) group and an oppressed group.

- Conflict between groups is normal & happens because of scarcity.

- With this theory resources is not just tangible like goods, it can be power, time and all other concepts
that are not tangible. It is important to remember while looking at this theory and when applying it to a
society.
- Karl Marx believe that the theory is existed in every aspect of the society (macro-level) – looking at
the society as a whole.

For you to understand conflict theory read the text below:

This theory views that dominant groups are blind. What it means is that dominant group will plant their
seed of destruction. It really does what boil down to be the dominant group wouldn’t understand that they
are doing something wrong or they are oppressing someone. That they were given advantages that
different group wasn’t because they weren’t exposed to it. They didn’t have these life experiences that show
them the view of reality. On the other hand, oppressed group was constantly reminded of what they are
lacking, of how they are unequal, how the other group is more privilege & more have resources and they
are the enemy per se.
Now what eventually happen then is enough people will get frustrated with the dominant group and
oppressed group would rise up to take control. Then the old dominant group would be the new oppressed
group, they have lost something. The cycle starts.

1|JFG
 For example:

Educational System (College) Low income class/

Wealthy/ upper
working class
and middle class
(oppressed group)
(Controlling/
dominant group)
Conflict arises
- more - lack of
when people
opportunity to go opportunity to go
get frustrated
college college
that certain
-have the opportunities in -lack of resources
resources for our society are for their education
their education not open to
them because - didn’t go to
-quality school in they believe quality school in
preparation for that they have preparation for
college less and not college
able to access
college

CYCLE OF CONFLICT

PERSPECTIVES RELATED TO CONFLICT THEORY

 Critical theory - critical theorists maintain that a primary goal of philosophy is to understand and to help
overcome the social structures through which people are dominated and oppressed.
 Feminist theory - an approach that recognizes women’s political, social and economic equality to men.
 Postmodern theory - an approach that is critical of modernism, with a mistrust of grand theories and
ideologies
 Post-structural theory - grounded in the concept of overdetermination. Overdetermination as an
epistemology implies the absence of a break between discourse and the objects of discourse. It implies
that theory is not separate from reality nor is reality separate from theory. We SEE what we are
TAUGHT to see in the concepts we LEARN. The concepts we LEARN are complexly shaped by the
stream of reality of which we are elements.
 Post-colonial theory - is the critical academic study of the cultural legacy of colonialism and imperialism,
focusing on the human consequences of the control and exploitation of colonized people and their
lands
 Queer theory - a growing body of research findings that challenges the heterosexual bias in Western
society.
 World systems theory - is an approach to world history and social change that suggests there is a world
economic system in which some countries benefit while others are exploited.
 Race Conflict Approach - a point of view that focuses inn equality and conflict between people of
different racial and ethnic categories.

2|JFG
PHASES OF CONFLICT

PHASE 1 may be associated with being happy. This phase is often what our culture focuses most on attaining
but it is only a temporary state. In Phase 1, we don’t seem to have problems, disagreements or tensions.

PHASE 2 is what many people identify as conflict. In Phase 2, the tension surfaces. arguments,
disagreements, frustrations, etc… arise here. We tend to lose sight of the phases that precede and follow this
phase of tension and upset. When you are stuck in Phase 2, you may want to get some help or support (i.e
therapy) but you could also work on the situation yourself.

We often sense that “role switching” of PHASE 3 is needed or wanted but have trouble being able to deeply
understand and feel into others’ experiences of the conflict we are in. Role switching is imagining or feeling
how another sees and experiences the problem and embracing (even if briefly) their point of view. This often
relieves the tension momentarily and allows us to find common ground or approach the other from a less
polarized point of view. We sometimes need outside help or support (therapy, counseling, meditation) to reach
this phase but there are tools and skills we can learn and develop to help ourselves into this phase

PHASE 4, the feelings of relaxed detachment and sensing how the universe moves you, is not only a phase
but also the background of openness and acceptance behind all the phases.

CONCEPT OF CONFLICT RESOLUTION

Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending
of conflict and retribution. The term conflict resolution may also be used interchangeably with dispute
resolution, where arbitration and litigation processes are critically involved. The concept of conflict resolution
can be thought to encompasses the use of nonviolent resistance measures by conflicted parties in an attempt
to promote effective resolution.

Committed group members attempt to resolve group conflicts by actively communicating information about
their conflicting motives or ideologies to the rest of group (e.g. intentions; reasons for holding certain beliefs)
and by engaging in collective negotiation. Dimensions of resolution typically parallel the dimensions of conflict
in the way the conflict is processed. Cognitive resolution is the way disputants understand and view the

3|JFG
conflict, with beliefs, perspectives, understanding and attitudes. Emotional resolution is in the way disputes feel
about a conflict, the emotional energy. Behavioral resolution is reflective of how the disputants act, their
behavior. Ultimately, a wide range of methods and procedures for addressing conflict exist, including
negotiation, mediation, mediation-arbitration, diplomacy, and creative peacebuilding.

Kenneth Thomas and Ralph Kilmann developed five conflict resolution strategies that people use to handle
conflict, including avoiding, defeating, compromising, accommodating and collaborating.

This assumes that people choose how cooperative and how assertive to be in a conflict. It suggests that
everyone has preferred ways of responding to conflict, but most of us use all methods under various
circumstances.

Conflict Resolution

Strategies Strategy 1 – Avoiding

This is when people seek to withdraw from or
ignore any conflict, usually because feeling uncomfortable about
the confrontation outweighs any possible reward from resolving it.
The problem is that this strategy doesn’t really resolve the issue
because there is a lack of contribution to the conversation.

Strategy 2 – Competing
People who are overly assertive rather than cooperative enter
into
conflict resolution with the intention of winning. There is an assumption
that one person wins and the other loses, pushing out any chance
of seeing a different perspective. As a result, this is not usually a good
strategy for resolving conflicts within a group.

Strategy 3 – Accommodating
Giving in to the wishes or demands of another is being cooperative, but not assertive. Yes, it appears
that the person is being gracious should their argument be incorrect, but when a person gives in just to keep
the peace, it isn’t necessarily helpful. Similar to “avoiding”, it doesn’t always lead to a satisfactory resolution to
an issue, and leaves the door open for more assertive members of the group to take control.

Strategy 4 – Collaborating
For most project or team managers, this is probably the strategy they’ll use. A collaborative person is
cooperative and assertive at the same time, allowing each member of the group to contribute and then
resolving the issues by establishing a shared solution that all can support.

Strategy 5 – Compromising
The last strategy is similar to “collaborating” but the person is only halfway towards being assertive and
cooperative. The concept is that each member of the group gives up something so that no member gets
everything. This is perceived as the best outcome, working to a compromise that is fair although, often, no one
is completely happy with the final resolution.

Lesson 2 RESTORATIVE JUSTICE VS RETRIBUTIVE JUSTICE

 Restorative Justice is a process through which remorseful offenders accept responsibility for their
misconduct, particularly to their victims and to the community. It creates obligation to make things right

4|JFG
 through proactive involvement of victims, ownership of the offender of the crime and the community in
search for solutions which promote repair, reconciliation and reassurance.
 Retributive justice, response to criminal behavior that focuses on the punishment of lawbreakers and
the compensation of victims. In general, the severity of the punishment is proportionate to the
seriousness of the crime.
The concept of retributive justice has been used in a variety of ways, but it is best understood as that
form of justice committed to the following three principles:
1. that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally
deserve to suffer a proportionate punishment;
2. that it is intrinsically morally good—good without reference to any other goods that might arise—
if some legitimate punisher gives them the punishment they deserve; and
3. that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately
large punishments on wrongdoers.

The following are some differences of restorative and retributive justice:

Retributive Justice Restorative Justice

Crime is an act against the state, a violation Crime is an act against another person and the
of a law, an abstract idea community

The criminal justice system controls crime Crime control lies primarily in the community

Offender accountability defined as taking Accountability defined as assuming

punishment responsibility and taking action to repair harm

Crime is an individual act with individual Crime has both individual and social dimensions
responsibility of responsibility

Lesson 3 ALTERNATIVE DISPUTE RESOLUTION AND AMICABLE SETTLEMENT

ALTERNATIVE DISPUTE RESOLUTION (ADR)

 The concept of Alternative Dispute Resolution (ADR) denotes the process in which disputes are
addressed and settled outside of the courtroom. In a more detailed language, ADR refers to the
ways in which disputes are resolved without litigation.
 ADR is the procedure for settling disputes without litigation, such as arbitration, mediation, or
negotiation.
 One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation,
ADR procedures are often collaborative and allow the parties to understand each other's positions.
ADR also allows the parties to come up with more creative solutions that a court may not be
legally allowed to impose.

5|JFG
CONCILIATION
Conciliation is defined as an alternative dispute resolution mechanism that is designed to resolve a
dispute among the parties through a non-adjudicatory and non- antagonistic way. It involves the neutral third
party who makes the disputant parties arrive at a conclusion and a satisfactory dispute settlement.
Conciliation is a voluntary mechanism and the conciliator who makes the parties resolve the dispute
cannot force the parties to come to an end of the dispute with a solution. The parties are not bound to follow
the solution and advice given by the conciliator. The decision of the conciliator cannot be pressurized upon the
parties to the dispute. Conciliation is a less formal and comparatively easy process from old conventional
methods and other alternative dispute resolution processes. The conciliator provides the parties with an
appropriate solution in order to resolve the dispute efficiently and effectively. This process is less time
consuming and cost- effective as no legal procedures are to be followed and no formal technicalities are
involved in this dispute resolution process. The solutions provided by the third neutral party to the dispute is
always kept in mind that it is best suitable for the interest and priorities of the disputant parties.
NEGOTIATION
Negotiation has been defined as any form of direct or indirect communication whereby parties who
have opposing interests discuss the form of any joint action which they might take to manage and ultimately
resolve the dispute between them.
Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future
relationship between two or more parties.
Negotiation has also been characterized as the “preeminent mode of dispute resolution”, which is
hardly surprising given its presence in virtually all aspects of everyday life, whether at the individual,
institutional, national or global levels. Each negotiation is unique, differing from one another in terms of subject
matter, the number of participants and the process used.
Characteristics of a Negotiation
Negotiation is:
 Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or
reject the outcome of negotiations and can withdraw at any point during the process. Parties
may participate directly in the negotiations or they may choose to be represented by someone
else, such as a family member, friend, a lawyer or other professional.
 Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range
from two individuals seeking to agree on the sale of a house to negotiations involving diplomats
from dozens of States (e.g., World Trade Organization (WTO)).

6|JFG
  Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is
reached by the parties together without recourse to a third-party neutral.
 Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever
rules they choose, if any. Generally, they will agree on issues such as the subject matter, timing
and location of negotiations. Further matters such as confidentiality, the number of negotiating
sessions the parties commit to, and which documents may be used, can also be addressed.
 Confidential: The parties have the option of negotiating publicly or privately. In the government
context, negotiations would be subject to the criteria governing disclosure.
 Flexible: The scope of a negotiation depends on the choice of the parties. The parties can
determine not only the topic or the topics that will be the subject of the negotiations, but also
whether they will adopt a positional- based bargaining approach or an interest-based approach.
MEDIATION
Simply put, mediation is negotiation between disputing parties, assisted by a neutral. While the
mediator is not empowered to impose a settlement, the mediator's presence alters the dynamics of the
negotiation and often helps shape the final settlement.
Successful mediations result in a signed agreement or contract which prescribes the future behavior of
the parties; this is often called a memorandum of understanding. Such an agreement has the force of a
contract and, when signed, becomes binding.
Characteristics of a mediation
Mediation is:
 Voluntary: No party is forced to use a mediator, nor are they forced to agree to a particular
settlement.
 Non-Coercive: The mediator does not decide for the parties, but helps them make their own
decision.
 Assisted Negotiation: The mediator's role is to be an impartial third party who helps the parties
reach a fair and mutually acceptable settlement. The mediator may provide relationship-building
and procedural assistance. Moreover, the mediator may also provide substantive options to the
parties.
 Informal: The proceedings of a mediation are more relaxed and informal than those of a court or an
arbitration. There are no prescribed rules of procedure and few rules other than those agreed to by
the parties themselves.
 Confidential: Generally, mediation is described as a confidential process. It is up to the parties to
jointly establish any limits. If it is decided that the mediation should be confidential, the parties and
the mediator should sign a clause to that effect.
Role of a Mediator?
In various situations, the mediator may attempt to:
 Encourage exchanges of information
 Help the parties understand each other's views
 Let the parties know that their concerns are understood
 Promote a productive level of emotional expression
 Lay out the differences in perceptions and interests
 Identify and narrow issues
 Help parties realistically evaluate alternatives to settlement
 Suggest that the parties take breaks when negotiations reach an impasse
 Encourage flexibility and creativity
 Shift the focus from past to future
 Shift the focus from one of blame to a creative exchange between the parties
 Hold caucuses with each disputant if there is deadlock or a problem
 Propose solutions that meet the fundamental interests of all parties.

7|JFG
ARBITRATION
Arbitration is perhaps the most popular and widely known dispute resolution process. Like litigation,
arbitration utilizes an adversarial approach that requires a neutral party to render a decision.
Arbitration is:
 Voluntary: Parties must expressly agree to arbitrate in writing, or fall within the ambit of legislation that
mandates arbitration in a given situation. If the parties have agreed to arbitrate, the court, on the motion
of one of the parties to the agreement, will generally require the parties to submit the dispute to
arbitration, unless it is found that the arbitration agreement is null and void, inoperative or incapable of
being performed.
 Controlled: The parties and their counsel are able to control procedural aspects of the process,
including the choice of neutral, timing and location of the hearing, as well as who, other than the parties
themselves, may be present.
 Private: An arbitration is usually conducted in private.
 Adjudicative: As in litigation, once a case has been presented by each side, the arbitrator issues a
decision.
 Confidential: Arbitration is generally confidential, if the parties so elect.
 Adversarial: While the arbitration process is based on the adversarial style of the litigation model, the
demeanor and nature of the hearing are determined by the parties, their counsel and the arbitrator.
 Flexible: The parties have discretion in choosing an arbitrator and the procedure to be followed in
resolving the dispute.
Why use arbitration?
The dispute resolution process that best suits a particular case can only be determined upon an
analysis of the dispute itself and the needs and interests of the parties. What does arbitration provide that
litigation and the other dispute resolution processes do not?
a. Speed – One of the main advantages of arbitration is its capacity to have disputes resolved quickly.
Even though the majority of court actions settle before trial, this often occurs only after lengthy and
expensive trial preparation, including examinations for discovery. Arbitration may provide the
opportunity to side-step prescribed procedural requirements of litigation. The parties also determine the
timeframe for the arbitration, allowing them to bypass delays inherent in litigation.
b. Choice of the neutral – Arbitration provides the disputants with the opportunity to choose the
individual(s) who will decide the issues in question. This freedom allows the parties to customize the
resolution process to suit these issues by, for example, choosing a neutral with expertise in the subject
matter of the dispute.
c. Technical issues – Arbitration gives the parties an opportunity to secure the services of an individual
experienced in a technical area, or one who has knowledge of the commercial norms relevant to a
particular business field. It is for this reason that disputes in the construction industry and maritime law
are often resolved through arbitration.
d. Confidentiality – There are cases which, by their very nature, require a confidential outcome. This may
occur because the dispute involves privileged information or issues of particular sensitivity.
Different forms of ADR:
 Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral
case evaluator who advises the parties on the strengths and weaknesses of their respective positions,
and assesses how the dispute is likely to be decided by a jury or other adjudicator.
 Early neutral evaluation: a process that takes place soon after a case has been filed in court. The
case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute.
The evaluation of the expert can assist the parties in assessing their case and may influence them
towards a settlement.

8|JFG
  Family group conference: a meeting between members of a family and members of their extended
related group. At this meeting (or often a series of meetings) the family becomes involved in learning
skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
 Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or
by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is
particularly useful for resolving complex scientific and factual disputes.
 Ombuds: third party selected by an institution – for example a university, hospital, corporation or
government agency – to deal with complaints by employees, clients or constituents.
LITIGATION AS MODES OF DISPUTE RESOLUTION
 Litigation refers to the process of preparing and presenting a case in court.
 If there is no contractual alternative then the only formal way to resolve disputes will be by litigation.
 The concept of litigation is already well understood, it being a formal dispute resolution process
conducted in public in the courts. The judge makes a judgment which is binding on the parties, subject
to the right of appeal on a point of law.

 The rules, procedures and application of the different types of ADR in our country (Philippines) will be
presented in your module 2 particularly RA 9285 or Alternative Dispute Resolution Act of 2004.
 When ADR happens, amicable settlement will be the possible result.
 What is amicable settlement?
 Amicable settlement is a process where parties to a dispute or a lawsuit find ways to resolve
their differences in a friendly and non- contentious way.
 To achieve an amicable settlement, the parties need to be willing to make concessions for
the sake of reaching an agreement.
 Without the desire to make an effort to settle a legal case, it will be nearly impossible to
achieve an amicable settlement.
 When parties reach an amicable settlement, they’ll either do it on the basis of their own desire
to resolve their dispute or will use the services of a mediator or a lawyer to support them in
the process.

References
Britanicca. (n.d.). critical theory | Definition & Facts. Retrieved September 22, 2020, from
https://www.britannica.com/topic/critical-theory
Canada Department of Justice. (2017, July 31). Dispute Resolution Reference Guide. Retrieved September
26, 2020, from https://www.justice.gc.ca/eng/rp-pr/csj- sjc/dprs-sprd/res/drrg-mrrc/03.html
Conflict Resolution Techniques in Project Management. (2019, July 30). Retrieved September 22, 2020, from
https://www.projectmanagementqualification.com/blog/2019/04/01/conflict- management-guide/
Conflict Solutions Center. (n.d.). Retributive vs. Restorative Justice. Retrieved September 22, 2020, from
http://www.cscsb.org/restorative_justice/retribution_vs_restoration.html
Crossman, A. (2019). What Is Conflict Theory? Retrieved September 22, 2020, from
https://www.thoughtco.com/conflict-theory-3026622
Find Law Team. (2020, October 8). What Is Alternative Dispute Resolution?
Retrieved October 23, 2020, from https://www.findlaw.com/hirealawyer/choosing-the-
right-lawyer/alternative- dispute-resolution.html
Fisher, S., Ibrahim Abdi, D., Ludin, J., Smith, R., Williams, S., Williams, S. (2000).Working with conflict: skills
and strategies for action. Zed books.
Hurst, A. (2017). Post-Structuralism. Retrieved September 22, 2020, from
https://www.oxfordbibliographies.com/view/document/obo- 9780190221911/obo-9780190221911-
0008.xml

------------------------------------------------------------- end of notes ------------------------------------------------------------------

9|JFG
Compiled by: JENNIFER F. GUITBA, MSCJ
Subject Instructor

Reviewed by: JEFFSON G. NAUNGAYAN, MSCRIM

Program Chair, BSCrim

DISPUTE RESOLUTION SYSTEM AND AMICABLE SETTLEMENT:

PHILIPPINE SETTING

Lesson 1 ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004

On Feb. 4, 2004, Congress enacted into law Republic Act No. 9285 entitled "An Act to Institutionalize
the Use of an Alternative Dispute Resolution System in the Philippines and to Establish the Office for
Alternative Dispute Resolution and for other Purposes". RA 9285 is known as the "Alternative Dispute
Resolution Act of 2004" (or the ADR law of 2004).

The declared policy of the ADR Law of 2004 is "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. Towards this
end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an
important means to achieve speedy and impartial justice and declog court dockets."

The salient features of the ADR Law of 2004 are, among others, the following:

1. Mediation, as a significant ADR mode, was given a concrete legal framework, and more importantly, solid
legal support and encouragement. In addition, the ADR law of 2004 established the principle of "Confidentiality
of Information" in mediation such that information obtained or generated through mediation proceedings is
deemed "privileged and confidential".

2. The United Nations Commission on International Trade Law (UNCITRAL) Model Law on International
Commercial Arbitration was adopted to govern international commercial arbitration in the Philippines. With this,
the ADR law of 2004 has brought Philippine law on international commercial arbitration up to par with the
world’s best and it superseded the outmoded 1952 RA 876, the Philippine Arbitration Law.

3. The National President of the Integrated Bar of the Philippines (IBP) or his duly authorized representative
was designated the default "Appointing Authority." Under the old law, in the absence of an agreement among
the parties, it was the Regional Trial Court (RTC) which will appoint the sole arbitrator or the third arbitrator of a
panel if and when the parties do not or cannot agree. As the "Appointing Authority", the National President of
the IBP or his duly authorized representative will decide challenges to the arbitrator as well as the termination
of his mandate.

4. The grant of interim or provisional relief by the courts and the arbitrator/s has been expanded and clarified.
Any party may request either the court or arbitral tribunal that an interim or provisional relief be granted against

10 | J F G
the adverse party on the following grounds: (i) to prevent irreparable loss or injury; (ii) to provide security for
the performance of any obligations; (iii) to produce or preserve any evidence; or (iv) to compel any other
appropriate act or omission.

Such interim measures may include but are not limited to a preliminary injunction directed against a
party, appointment of a receiver or the detention, preservation, and inspection of property subject of the
arbitration.

5. Although RA 876, the old Arbitration Law, continues to govern domestic arbitration, the ADR law of 2004
adopted several provisions of the UNCITRAL Model Law as well as RA 9285 for domestic arbitration. Thus, to
a large extent, even the rules on domestic arbitration were updated by RA 9285 – specifically on the
appointment and number of arbitrators, grounds/procedure to challenge arbitrators, termination of the mandate
of arbitrators, equality and full opportunity of each party to present their case, decision-making by a panel of
arbitrators, form and contents of the award, confidentiality of arbitration proceedings, and interim measures of
protection.

6. With respect to the Construction Industry Arbitration Commission (CIAC) under E.O. 1008, the ADR law of
2004 now allows (i) for the appointment of a foreign arbitrator as co-arbitrator or chairman of a tribunal who has
not been previously accredited by the CIAC, and (ii) upon written agreement of the parties, for an arbitrator to
act as mediator and vice versa.

The ADR Law of 2004 also codified into law the CIAC Rule that a Regional Trial Court before which a
construction dispute is filed and is aware that the parties involved have entered into an arbitration agreement
must dismiss the case and refer the parties to arbitration to be conducted by the CIAC.

7. The ADR Law of 2004 likewise clarified the judicial review and enforcement of arbitral awards. For Foreign
Arbitral Awards, RA 9285 refers to the provisions of the New York Convention of 1958.

8. The Office for Alternative Dispute Resolution (OADR) created by the law will be established an attached
agency of the Department of Justice (DOJ). The objectives of the OADR are to promote, develop and expand
the use of ADR in the private and public sectors; to assist the government to monitor, study and evaluate the
use by the public and the private sector of ADR; and to recommend to Congress needful statutory changes to
develop, strengthen and improve ADR practice in accordance with world standards.

The Secretary of Justice is obliged to convene a Committee composed of representatives from: (a) the
Department of Justice, (b) the Department of Trade and Industry; (c) the Department of Interior and Local
Government; (d) the President of the Integrated Bar of the Philippines; (e) a representative from the arbitration
professions; (f) a representative from the mediation profession; and (g) a representative from the ADR
organizations, to formulate the Implementing Rules and Regulations (IRR) which shall be submitted to a Joint
Congressional Oversight Committee for review and approval.

The New ADR Law of 2004, which shall take effect 15 days after its publication in at least two national
papers of general circulation, has yet to be published. The legal and allied professions in ADR are eagerly
awaiting the effectivity of this new act.

Lesson 2 AMICABLE SETTLEMENT IN THE BARANGAY

Republic Act 7160, otherwise known as the 1991 Local Government Code, gives barangays the
mandate to enforce peace and order and provide support for the effective enforcement of human rights and
justice. Decentralization has facilitated the recognition of the Katarungang PAMBARANGAY or Barangay
Justice System as an alternative venue for the resolution of disputes.

11 | J F G
When PD 1508 first decreed the setting up of the Barangay Justice System, the law had the following
objectives:
 To promote the speedy administration of justice
 To minimize the indiscriminate filing of cases in courts
 To minimize the congestion of court dockets and thereby enhance the quality of justice dispensed by
the courts
 To perpetuate and recognize the time-honored tradition of amicably settling disputes at the community
level

Simply put, the Barangay Justice System provides a friendly, inexpensive, and speedy forum for the
settlement of disputes where the parties can freely explore options for amicably resolving their disputes
without resorting to the courts.
In some areas where the courts are inaccessible, both because of location and because of the
prohibitive
costs of litigation, the Barangay Justice System, with all its limitations, can be the only venue that the poor
can avail of for the resolution of their disputes.
The Supreme Court issued Administrative Circular No. 14-93 on July 15, 1993 directing the courts to
ensure compliance with the requirement of prior recourse to the Barangay Justice as a condition for filing a
complaint in court for cases that are covered by the system.

ALTERNATIVE WAY OF JUSTICE

An Act of Providing for a Local Government Act of 1991, specifically chapter 7, Section 399 to 442, 4
provides the landscape of Katarungan Pambarangay (Barangay Justice). It paved the way to establish a
means a settling of disputes in the village level and lessening the caseloads of the Courts and other Agencies
in the Justice System.
The Philippine Society is described as a highly personal and intimate community of “interrelated
persons” of which the present political unit is structured. The most dominant characteristic of Philippine Society
is the encompassing influence of close personal relations upon almost any conceivable human dealings or
transaction. With that, since crime or conflict happen in the context of the intricate web of personal
relationships, adversarial and retributive conflict resolution methods such as litigation are usually not suitable.
In an association of people, what controls them is the degree of connectedness; of relationship,
anchored on common and shared interest and a sense of connection based on that shared interest. These
bonds of common feelings constitute “communitarian existence.”
When a crime or conflict is committed in a community, the assumption is that three (3) relationships are
disturbed:
1. Relationship between victim and the offender;
2. Relationship between offender and the community; and sometimes
3. Relationship between the victim and the community.

The three stakeholders are affected by the impact of crime or conflict, and relationship is disturbed, and
deserve to be addressed appropriately. The offender should be accountable to rectify/correct a wrong
committed and restitute whatever damages are inflicted (Accountability). The victim deserves to be
compensated and be empowered again (Competency Development). The community deserves an orderly and
peaceful society (public safety).

KATARUNGAN PAMBARANGAY (KP) – ASCENDANT OF DOJ-PPA RESTORATIVE JUSTICE

The KP System (Village Justice) was institutionalized under Presidential Decree No. 1508, which took
effect on 30 December 1978. Its real intent is to recognize the cultural heritage of the Filipinos, where
differences among people are not resolved through a formal or adversarial manner, but by means of an
effective problem-solving mechanism of negotiation, mediation or conciliation. This is a time-honoured tradition

12 | J F G
of the Filipino people rooted on our historical background. The essential objective is to achieve a peaceful and
harmonious resolution of conflicts anchored on Filipino values which we treasured most like: pakikisama
(community spirit); Utang na Loob (debt of gratitude) and kinship. In addition, relevant values such as
pakikipagkapwa-tao (human relation), pakikiisa (unifying spirit), generosity and helpfulness, love and caring,
respect, strong family and community ties, and other sets of values that a majority of Filipinos endeavour most
in their lives.

LUPON-TAGAPAMAYAPA-KATARUNGAN PAMBARANGAY (VILLAGE JUSTICE)

A system of settling disputes or differences operating in all barangays in the country with the objective to
promote, among others, the speedy and effective administration of justice, by laying the ways to amicably
resolve personal and family differences among barangay members which considerably reduced the bloating of
court dockets.
The Katarungan Pambarangay is put to flesh by a “Lupon Tagapamayapa” to solve disputes within the
village level before going to court. It consists of 10 to 20 members in the Barangay and chaired by the
Barangay Chairman (Village Chief). The Members of the Lupon shall possess the following qualifications:
Residing or working within the village; possess integrity; impartiality; independence of mind; sense of fairness;
reputation; and not disqualified by law.
If there are matters involving questions of law, the provincial, city legal officer or the municipal legal officer or
prosecutor shall provide legal advice on matters of questions of law whenever necessary.
The Lupon of each barangay has the power to settle disputes with the following exceptions:
1. Where one party is the government or any subdivision or corporate body;
2. Where one party is a public officer or employee, and the disputes relate to the performance of official
functions;
3. Offences where there is no private offended party;
4. Offences punishable by imprisonment of more than one (1) year or a fine of Five Thousand Pesos (P
5,000.00);
5. Where conflict involves real property located in different cities or municipalities unless the parties agree
to submit their differences to the settlement by the Lupon;
6. Conflict involving parties who actually reside in Barangays (Village) of different cities or municipalities,
except where Barangay (Village) units adjoin each other and the Parties agree to submit their
differences; and
7. Such other classes of disputes which the
President may determine in the interest of Justice
or upon recommendation of the Secretary of
Justice.
The Three Components of KP
1. Lupong Tagapamayapa
2. Pangkat ng Tagapagsundo
3. Legal Advisers

Pangkat ng Tagapagkasundo (Conciliation Panel)

It is a panel composed of three (3) members who are chosen by the parties to the dispute from the list of the
members of the Lupon (Council). In case the parties fail to agree on the pangkat membership, the same shall
be determined by lots drawn upon by the Lupon Chairman.
Who Is Disqualified from Membership in the Pangkat
1. Relationship
2. Bias

13 | J F G
 3. Interest
4. Any other similar ground
Lupon/Pangkat Authority
Basically, the Lupon and the Pangkat have no power to punish parties and their witnesses for contempt as it
is only an inherent power of the Courts of Law. However, the Lupon and the Pangkat, may file an application to
cite any party or witness who refuses to appear without justifiable reason to cite uncooperative personalities for
indirect contempt before a Court of Law. If found guilty, the person cited may be fined not exceeding Five
Thousand Pesos (P 5,000.00) or imprisonment not exceeding one (1) month, or both.

Stages of KP
The Katarungan Pambarangay (KP) has three stages as shown below:
a. Mediation
b. Conciliation
c. Arbitration
Pre-Condition to Filing of Complaint Before the Court of Law
Katarungan Pambarangay is not a Court of Law as duly recognized by the Constitution. It is an
innovation of the Philippine Justice System to usher the resolution of disputes at the Barangay (Village) level
to achieve peace and harmony and likewise to be an accessible and effective form of achieving justice
without resorting to adversarial proceedings.
Consequences of Non-Appearance
Upon the non-appearance of the complainant, the Lupon may dismiss the complaint and its dismissal
shall bar the complainant from seeking any judicial recourse for the same cause of action. On the other
hand, the non-appearance of the respondent may bar the respondent from invoking counterclaims caused
by or necessarily connected with the action filed by complaining party and, if invoked, may be dismissed. Its
dismissal shall bar the subject respondent from filing a counterclaim in court. Likewise, unreasonable
nonappearance may be a ground for issuance of a certification to file action and as consequence willful
failure or refusal may be a ground for citation for indirect contempt of court.

14 | J F G