Dispute Resolution and Crises/Incident Management Criminology 6

DISPUTE RESOLUTION
AND
CRISES/INCIDENTS MANAGEMENT

DINA M. LARIOSA, MS-Crim.

JERIC D. CATALAN, MSCJ.

COURSE TITLE: Criminology 6 - DISPUTE RESOLUTION & CRISES/INCIDENTS MANAGEMENT

COURSE DESCRIPTION:

Dispute Resolution and Crisis/Incident Management

1
Dispute Resolution and Crises/Incident Management Criminology 6

This course deals with the study of the different mechanisms in dealing and resolving conflicts/disputes. It
includes the art of intervention through mediation, and reconciliation between stakeholders and agencies tasked
to carry out the endeavor. Likewise, the course includes the concepts of crisis management and the proper
procedure in handling the incident. Moreover, the study significantly provides mechanisms on how to adopt
strategies in dealing with potential and actual crises which are being addressed by concerned agencies and
authorities and the community.

COURSE OUTLINE:

Segment I: Dispute Resolution

• The Importance of Dispute Resolution
• Principles of Conflict Resolution
• Basic types of Dispute Resolution
• Methods of dispute resolution
• Five approaches of dispute resolution
• The process of Dispute Resolution

Segment II: Principles and Philosophies of:

• Reconciliation;
• Arbitration;
• Negotiation;
• Mediation, and the Court Annexed
• Mediation; and
• Judicial Mediation; and
• Litigation as modes of Dispute Resolution

Pre-test: Answer the following questions (5 points)

1. What do you understand of the word dispute resolution?

2. What are the three ways to settle a dispute out of court?
3. How to settle a dispute without going to court?
4. What is the purpose of reconciliation?
5. Discuss the principles of arbitration.
6. What is the difference between Arbitration and Mediation?

INTRODUCTION

Dispute Resolution and Crisis/Incident Management

2
Dispute Resolution and Crises/Incident Management Criminology 6

Dispute Resolution and Crises/Incidents Management are two essential subjects for criminology students as they
provide valuable tools and techniques for managing conflicts and crises in various contexts. Dispute Resolution involves
the process of resolving conflicts or disputes between two or more parties in a peaceful and equitable manner, while
Crises/Incidents Management focuses on managing unexpected events that can lead to disruptions, loss, and damage to
individuals, organizations, or communities.

Criminology students can benefit from these courses as they provide a theoretical and practical understanding
of the nature of conflicts and crises and the various techniques used to manage them. They also help students develop
skills such as effective communication, negotiation, conflict resolution, risk management, and decision-making, which
are crucial in criminology.

Moreover, the courses provide students with an understanding of the legal and ethical considerations in dispute
resolution and crises/incidents management, which is important for criminology students as they deal with issues
related to law enforcement, criminal justice, and public safety.

The skills gained from these courses are valuable in various criminology careers, including law enforcement,
corrections, victim services, and criminal justice administration. They are crucial in promoting peace, stability, and
progress in communities and organizations.

Therefore, Dispute Resolution and Crises/Incidents Management are important subjects for criminology
students as they provide valuable tools and techniques for managing conflicts and crises in various contexts. By
developing effective communication, negotiation, and risk management skills, criminology students can resolve disputes
and manage crises in a way that promotes peace, stability, and progress.

References:

Fitzpatrick, P. J. (2014). Dispute resolution: Negotiation, mediation, and other processes. Wolters Kluwer Law &
Business.

Lagadec, P. (2010). Preparing for the unexpected: Designing resilient cities. Futures, 42(3), 311-319.

Lodder, A. R., & Zeleznikow, J. (2010). Enhanced dispute resolution through the use of information technology.
Cambridge University Press.

Mayer, B. (2012). The dynamics of conflict resolution: A practitioner's guide. John Wiley & Sons.

DISPUTE RESOLUTION

Dispute Resolution and Crisis/Incident Management

3
Dispute Resolution and Crises/Incident Management Criminology 6

What is Dispute Resolution?

 Dispute resolution is the process of resolving conflicts or disputes between two or more parties in a peaceful and
equitable manner (Kaufmann-Kohler & Waibel, 2016).

 Dispute resolution refers to a number of processes that can be used to resolve conflicts, disputes, or claims in an
alternative manner to having a court or other institution decide the resolution of the case (Kaufmann-Kohler &
Waibel, 2016). Dispute resolution may also be referred to as alternative dispute resolution, appropriate dispute
resolution, or DR for short.

 Dispute resolution processes are alternatives to having a court decide a dispute in a trial or other institution decide
the resolution of the case. Dispute resolution techniques assist in the resolution of antagonisms between parties
that can include citizens, corporations, and governments (Lodder & Zeleznikow, 2010).

 The term dispute resolution is sometimes used interchangeably with conflict resolution, although conflicts are
generally more deep-rooted and lengthier than disputes. Dispute resolution techniques can be used to resolve
disputes between parties in a way that is more efficient and cost-effective than traditional legal proceedings
(Cronin et al., 2011).

 Therefore, dispute resolution refers to a range of processes that can be used to resolve conflicts, disputes, or
claims in an alternative manner to traditional legal proceedings. By using dispute resolution techniques, parties
can resolve their disputes in a way that is more efficient, cost-effective, and mutually beneficial.

In law, dispute resolution refers to the process where a dispute resolution practitioner assists the parties to a
dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement about some
issues or the whole dispute (Folberg et al., 2014). Dispute resolution processes can be used to resolve any type of
dispute including family, neighborhood, employment, business, housing, personal injury, consumer, and environmental
disputes.

 Dispute resolution takes a number of different forms or basic types, such as mediation, arbitration, and litigation,
which are most of the time civil in nature, or minor criminal offenses in character (Lodder & Zeleznikow, 2010).

 Dispute resolution refers to all processes that are used to address disputes. It includes all dispute resolution
methods and approaches from early resolution through to formal tribunal or court processes (Fitzpatrick, 2014).

 Therefore, dispute resolution refers to the process of resolving disputes between parties using a variety of
different methods and approaches. By using dispute resolution techniques, parties can resolve their disputes in a
way that is more efficient, cost-effective, and mutually beneficial.

Disputes can involve:

 Individuals (eg, neighbors in dispute over a shared driveway)

 Companies (eg, an employee in dispute with an employer)
 Sometimes the government itself (eg, a company challenging a decision by a government agency).

In all these situations, the parties involved generally have a range of options for managing or resolving the
dispute. They may try to:

 Resolve it themselves
 Agree to use a third party to help them (eg, privately contract with a mediator)
 Use a process provided by government (eg, a government mediation service, tribunal or ombudsman)
 Use a process provided by the private sector (eg, an industry body).

Dispute Resolution and Crisis/Incident Management

4
Dispute Resolution and Crises/Incident Management Criminology 6

In some circumstances, the formal court system may be an appropriate channel or a last recourse when other
approaches have been unsuccessful.
The Importance of Dispute Resolution

Disputes are damaging, expensive, and time consuming. They affect individuals, communities, organizations,
government, and the economy. Preventing disputes, and resolving disputes earlier and more effectively, benefits the
Philippines and the economy.

A dispute resolution is a mechanism that provides a peaceable and fair way to work through and resolve
questions, disputes, misunderstandings or differences that may arise from time to time throughout the operation of your
contract in your dealings with the other party.

Conflict

Conflict is an inevitable part of human interaction and can arise in any situation where there are different goals,
values, beliefs, or interests at play (Deutsch, 1973). The process of dispute resolution involves identifying the underlying
causes of the conflict, understanding the needs and interests of each party, and seeking to find a mutually beneficial
solution that satisfies everyone involved (Moore, 2014).

Principles of Conflict Resolution

The principles of conflict resolution provide a framework for resolving disputes in a peaceful and equitable manner
(Moore, 2014). Here are some of the main principles of conflict resolution:

1. Communication: Effective communication is key to resolving conflicts. It involves actively listening to the other
party, expressing oneself clearly and respectfully, and seeking to understand the other person's point of view
(Fisher et al., 2011).

2. Collaboration: Collaboration involves working together to find a mutually beneficial solution. It requires a
willingness to compromise and seek common ground, rather than trying to win at all costs (Ury et al., 2015).

3. Respect: Respect for the other party's dignity, values, and beliefs is essential in conflict resolution. It involves
acknowledging the other person's perspective, feelings, and needs, and treating them with empathy and
understanding (Deutsch, 1973).

4. Fairness: Fairness is an important principle of conflict resolution. It involves treating all parties equitably, and
ensuring that the outcome of the resolution process is reasonable and just (Moore, 2014).

5. Creativity: Creativity involves thinking outside the box to find novel solutions to complex problems. It requires a
willingness to explore unconventional ideas and approaches, and to be open to new perspectives and possibilities
(Fisher et al., 2011).

6. Patience: Patience is essential in conflict resolution, as it takes time and effort to find a mutually acceptable
solution. It involves being persistent, staying focused on the goal, and not giving up in the face of challenges or
setbacks (Ury et al., 2015).

By applying these principles, individuals and groups can work together to resolve conflicts in a way that promotes
understanding, respect, and cooperation.

SOME THEORIES RELATED TO DISPUTES WITH REFERENCES:

1. Social Identity Theory: This theory suggests that disputes arise due to differences in social identities and can be
resolved by acknowledging and addressing these differences (Tajfel, H. 1982).
2. Attribution Theory: This theory suggests that disputes arise due to differences in attribution, or how individuals
interpret the actions of others. By understanding these differences, parties can reach a resolution ( Heider, F.
1958).

Dispute Resolution and Crisis/Incident Management

5
Dispute Resolution and Crises/Incident Management Criminology 6

3. Cognitive Dissonance Theory: This theory suggests that disputes arise due to inconsistencies between beliefs
and actions. By addressing these inconsistencies, parties can resolve the dispute ( Festinger, L. 1957).
4. Social Learning Theory: This theory suggests that disputes arise due to learned behaviors and can be resolved
by changing these learned behaviors (Bandura, A. 1977).
5. Equity Theory: This theory suggests that disputes arise due to perceived inequities in social exchange and can
be resolved by restoring equity (Adams, J. S. 1965).
6. Social Exchange Theory: This theory suggests that disputes arise due to imbalances in social exchange and
can be resolved by restoring balance to the relationship (Blau, P. M. 1964).
7. Conflict Resolution Theory: This theory suggests that disputes can be resolved through a variety of techniques,
including negotiation, mediation, and arbitration (Moore, C. W. 2014).
8. Social Constructionist Theory: This theory suggests that disputes arise due to different constructions of reality
and can be resolved by exploring and addressing these different constructions (Gergen, K. J. 1994).
9. Social Penetration Theory: This theory suggests that disputes arise due to differences in self-disclosure and can
be resolved by increasing self-disclosure and understanding (Altman, I., & Taylor, D. A. 1973).
10. Social Support Theory: This theory suggests that disputes arise due to lack of social support and can be
resolved by increasing social support (Cohen, S., & Wills, T. A. 1985).
11. Interest-Based Theory: This theory suggests that disputes arise due to conflicting interests and can be resolved
by identifying and addressing the underlying interests of each party. This approach focuses on finding mutually
beneficial solutions that meet the needs of both parties (Fisher, R., et.al. 2011).
12. Communication Theory: This theory suggests that many disputes arise due to miscommunication or
misunderstandings. Effective communication can help parties understand each other's perspectives and reach a
resolution (Pearson, C. et.al 1998).
13. Power Theory: This theory suggests that disputes arise due to power imbalances between parties. The
resolution of disputes requires addressing these imbalances and ensuring that both parties have equal power to
negotiate a resolution (Lederach, J. P. 1995).
14. Game Theory: This theory suggests that disputes can be viewed as a game, with each party trying to maximize
their own outcomes. By understanding the game and the strategies of each party, a resolution can be reached
that benefits both parties (Axelrod, R. (1984).
15. Legal Theory: This theory suggests that disputes arise due to violations of legal rights and can be resolved by
applying legal principles and procedures (Menkel-Meadow, C. 1991).
16. Psychodynamic Theory: This theory suggests that disputes arise due to unconscious motivations and can be
resolved by exploring and addressing these underlying motivations (Shapiro, D. L. 1994).

Basic types of Dispute Resolution

The Philippines has several types of dispute resolution methods available to parties seeking to resolve their
disputes. Mediation, arbitration, conciliation, and court litigation are some of the most commonly used methods. The
choice of method will depend on the nature and complexity of the dispute, as well as the willingness of the parties to
engage in a collaborative process to find a resolution.

There are several types of dispute resolution methods commonly used in the Philippines, including the following:

1. Mediation: This is a process in which a neutral third party assists the disputing parties in reaching a mutually
acceptable agreement. Mediation is commonly used in civil disputes, labor disputes, and family disputes in the
Philippines (Office of Alternative Dispute Resolution, 2018).

2. Arbitration: This is a process in which a neutral third party, the arbitrator, hears both sides of the dispute and
makes a binding decision. Arbitration is commonly used in commercial disputes, construction disputes, and labor
disputes in the Philippines (Chan Robles Virtual Law Library, 2019).

3. Conciliation: This is a process similar to mediation, in which a neutral third party assists the disputing parties in
reaching a mutually acceptable agreement. However, the conciliator has a more active role in proposing solutions
and making recommendations (Office of Alternative Dispute Resolution, 2018).

Dispute Resolution and Crisis/Incident Management

6
Dispute Resolution and Crises/Incident Management Criminology 6

4. Court Litigation: This is a process where parties submit their dispute to a court of law, and a judge makes a legally
binding decision based on the facts and evidence presented in court. Court litigation is commonly used in civil and
criminal disputes in the Philippines (Chan Robles Virtual Law Library, 2019).

Methods of dispute resolution include:

There are several modes of dispute resolution available to parties seeking to resolve their disputes. The choice of
mode will depend on the nature and complexity of the dispute, as well as the willingness of the parties to engage in a
collaborative process to find a resolution.

1. Mediation: This is a process in which a neutral third party assists the disputing parties in reaching a mutually
acceptable agreement. Mediation is commonly used in civil disputes, labor disputes, and family disputes
(Folberg et al., 2014).

2. Arbitration: This is a process in which a neutral third party, the arbitrator, hears both sides of the dispute and
makes a binding decision. Arbitration is commonly used in commercial disputes, construction disputes, and
labor disputes in the Philippines (Chan Robles Virtual Law Library, 2019).

3. Conciliation: This is a process similar to mediation, in which a neutral third party assists the disputing parties
in reaching a mutually acceptable agreement. However, the conciliator has a more active role in proposing
solutions and making recommendations (Office of Alternative Dispute Resolution, 2018).

4. Negotiation: This is a process in which the parties themselves work to reach a mutually acceptable
agreement. Negotiation is commonly used in business disputes, environmental disputes, and international
conflicts (Lewicki et al., 2015).

5. Litigation: This is a process where parties submit their dispute to a court of law, and a judge makes a legally
binding decision based on the facts and evidence presented in court. Litigation is commonly used in civil and
criminal disputes (Mayer, 2012).

6. Collaborative Law: This is a process in which the parties themselves work with their respective lawyers to
reach a mutually acceptable agreement. Collaborative law is commonly used in family law disputes
(International Academy of Collaborative Professionals, 2016).

What are the five approaches of dispute resolution?

Understanding what five methods or strategies of dispute resolution are can be incredibly helpful when engaging
in a dispute resolution process. This can help a party prepare for the process adequately with the right strategy and can
give the party insight into their own needs as well as the other party’s needs.

The Thomas-Kilmann Model identifies five different approaches to resolving conflict. These approaches include:
avoiding, accommodating, compromising, competing, and collaborating.

1. Avoiding. Someone who uses a strategy of "avoiding" mostly tries to ignore or sidestep the conflict, hoping it will
resolve itself or dissipate.

2. Accommodating. Using the strategy of "accommodating" to resolve conflict essentially involves taking steps to
satisfy the other party's concerns or demands at the expense of your own needs or desires.

3. Compromising. The strategy of "compromising" involves finding an acceptable resolution that will partly, but not
entirely, satisfy the concerns of all parties involved.

4. Competing. Someone who uses the conflict resolution strategy of "competing" tries to satisfy their own desires at
the expense of the other parties involved.

Dispute Resolution and Crisis/Incident Management

7
Dispute Resolution and Crises/Incident Management Criminology 6

5. Collaborating. Using "collaborating" involves finding a solution that entirely satisfies the concerns of all involved
parties.

The Thomas-Kilmann model identifies two dimensions people fall into when choosing a conflict resolution
strategy: assertiveness and cooperativeness. Assertiveness involves taking action to satisfy your own needs, while
cooperativeness involves taking action to satisfy the other's needs.

The process of Dispute Resolution

Dispute resolution processes fall into two major types:

1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the
outcome.

2. Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties
attempt to reach agreement.

Principles and Philosophies of Reconciliation as modes of Dispute Resolution:

Reconciliation is a process of restoring or repairing a relationship that has been damaged or broken. It involves
acknowledging past wrongs, promoting understanding and empathy, and working towards a shared vision of a just and
equitable future. Reconciliation can occur in a variety of contexts, including interpersonal relationships, communities, and
nations.
Is also a process of resolving disputes or conflicts between parties in a peaceful and equitable manner by bringing
them together to repair relationships, restore trust, and promote healing.

The principles and philosophies of reconciliation as a mode of dispute resolution are based on the idea that conflicts
can be resolved through peaceful means, and that it is possible to find common ground even in the most challenging
situations. These principles and philosophies are grounded in various theories and practices, including restorative justice,
transformative justice, and alternative dispute resolution (ADR).

1. Restorative Justice: This approach to conflict resolution focuses on repairing the harm caused by wrongdoing,
rather than punishing the wrongdoer. It involves empowering those affected by the conflict to take an active role in
the resolution process, and emphasizes healing and restoration for both the victim and the offender. (Wachtel,
2013)

2. Transformative Justice: This approach to conflict resolution seeks to transform the relationships and systems that
have contributed to the conflict, rather than just addressing the immediate dispute. It involves a deep analysis of
the underlying causes of conflict, and emphasizes the importance of building strong, inclusive, and equitable
communities. (Braithwaite, 2010)

3. Alternative Dispute Resolution (ADR): This refers to a range of processes, such as mediation, negotiation, and
arbitration, that are used to resolve disputes outside of the traditional court system. ADR emphasizes the
importance of communication, collaboration, and mutual understanding in resolving conflicts. (Mnookin et al.,
2010)

4. Community Building: Reconciliation in dispute resolution involves building strong and inclusive communities that
are grounded in shared values, respect, and understanding. This includes promoting diversity and inclusion, and
working towards building relationships that are based on trust and mutual respect. (Pruitt & Carnevale, 2015)

5. Education and Awareness: Education and awareness are key components of the reconciliation process in dispute
resolution. This involves educating individuals and communities about the various approaches to conflict
resolution, as well as promoting awareness of diverse perspectives and cultures. (Bingham & Doob, 2012)

Processes of Reconciliation

Dispute Resolution and Crisis/Incident Management

8
Dispute Resolution and Crises/Incident Management Criminology 6

The process of reconciliation as a mode of dispute resolution involves a series of steps aimed at repairing
relationships and promoting healing and restoration. These steps may vary depending on the context of the conflict, but
generally involve the following:

1. Acknowledgment: This involves recognizing the harm that has been done and acknowledging the experiences
and perspectives of all parties involved. It can involve apologies, expressions of remorse, and an acceptance of
responsibility for one's actions (Ramsbotham et al., 2016).
2. Dialogue: Dialogue involves open and honest communication between parties, with a focus on listening to each
other's perspectives and experiences. Dialogue helps to build trust and understanding, and can lead to the
development of shared goals and values (Philippine Reconciliation Commission, 2012).

3. Restitution: Restitution involves making amends for the harm that has been caused. This can involve
compensation, reparations, or other forms of restitution that help to restore what has been lost or damaged (Zehr,
2015).

4. Healing: Healing involves promoting physical, emotional, and spiritual well-being for all parties involved. This can
involve counseling, therapy, or other forms of support that help individuals to move forward from the harm that has
been caused (Office of the Presidential Adviser on the Peace Process, 2012).

5. Reintegration: Reintegration involves restoring relationships and rebuilding trust between parties. This can
involve ongoing communication, collaboration, and relationship-building that help to prevent future conflicts
(Philippine Reconciliation Commission, 2012).

Some Strategies of Reconciliation

1. Communication: Open and honest communication is essential for reconciliation. Parties must be willing to listen to
each other's perspectives and express their own feelings and concerns.

2. Apology: An apology is a powerful tool for reconciliation. It shows that the offending party acknowledges their
wrongdoing and takes responsibility for their actions.

3. Forgiveness: Forgiveness is an act of letting go of anger, resentment, and the desire for revenge. It allows parties
to move forward and rebuild their relationship.

4. Memorials: memorials of past wrongdoing have the potential to play a number of different roles in the process of
reconciliation. Memorials help preserve the memory of the past event, which counters any who would deny or
forget the past. It consolidates a communal understanding of history and provide a shared focus for emotions,
such as grief or remorse.

5. Amnesties: Amnesties, which grant legal protection from civil and/or criminal liability, are a particularly
controversial form of reconciliation process. Amnesty can be granted to individuals or classes of persons. It can
be granted unconditionally or conditionally. If conditional, the granting of amnesty occurs only if certain provisions
are met.

6. Truth Telling: Both apologies and memorials combine an acknowledgment of a troublesome past with the
suggestion of an emotional reaction to that past, such as remorse, regret or grief. Yet, even without such
emotional content, the communication of the facts of the past can play a role in reconciliation. Individual victims
and survivors often find themselves unable to move on when they are uncertain about crucial facts of the past.

7. Lustration: Lustration refers to legal measures that permit or require the investigation of individuals running for
election, serving in the military, or working in government agencies, universities, or the media. Individuals found to
have connections to past injustices or perpetrating groups may then be publicly exposed or excluded from serving
in public roles.

Dispute Resolution and Crisis/Incident Management

9
Dispute Resolution and Crises/Incident Management Criminology 6

8. Reparations: The term ‘reparations’ has been used more and less broadly to refer to efforts to repair the harm that
results from a wrong or conflict. A narrow use of the term refers to a transfer of land, goods, or wealth that is
intended to directly compensate for goods that were taken, damaged or destroyed. The payment is made either
by the party who was responsible for the harm, by the wrongdoers’ descendants or other beneficiaries, or
potentially by a third party acting on the wrongdoers’ behalf.

9. Collaborative problem-solving: Collaborative problem-solving involves working together to find a mutually

acceptable solution. Parties must be willing to compromise and find common ground.

The Arbitration

Arbitration is a mode of dispute resolution that involves a neutral third party, the arbitrator, who makes a binding
decision to resolve the dispute. The principles of arbitration are based on the idea of providing a fair, efficient, and cost-
effective process for resolving disputes.

Arbitration in the Philippines

Arbitration in the Philippines is governed by three main pieces of legislation: the New Civil Code (RA 386), the
Arbitration Law of 1953 (RA 876), and the Alternative Dispute Resolution Act of 2004 (RA 9285). Construction is
specifically governed by the Construction Industry Arbitration Law of 1985 (EO 1008). Arbitration in the Philippines is also
governed by the Special Rules of Court on Alternative Dispute Resolution [1] and Department of Justice (DOJ), [2]
promulgated by the Supreme Court and the Department of Justice, respectively, all of which underscore state policy in
favor of arbitration.

Arbitration was first used in the Jay treaty of 1795, which was negotiated by John Jay. The United States and
Great Britain had started the use of arbitration to resolve their issues. At the First International Conference of American
States in 1890, this plan was introduced to start a systematic arbitration, further, this plan failed. After that, many countries
signed treaties, and many conventions were made regarding arbitration. Some were rejected and some were not
accepted by the tenants.

Nowadays, many countries use arbitration to solve their disputes. The most important international instrument on
arbitration law is The Newyork Convention, 1958, which entered into force on 7 June 1959. According to research, there
are over 150 countries ratified under this convention.

What is Arbitration?

Arbitration is a mechanism of resolving disputes using private entities called arbitral tribunals. The dispute is
decided by one or more persons, known as the arbitrators or arbiters, who render an arbitration award. Such an award is
legally binding on both the parties and is enforceable in the courts.

Arbitration is a method of alternative dispute resolution where the parties agree to submit their disputes to a
neutral third party, called an arbitrator, who makes a binding decision (Peters, G. B. 2017).

Arbitration" means a voluntary dispute resolution process in which one or more arbitrators, appointed in
accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an
award (Sec.3, par. D, R.A. 9287).

What is the purpose of arbitration?

The purpose arbitration is to resolve disputes without going to court. Sometimes an attorney will recommend
arbitration to a client as the best means to resolve a claim. In arbitration, the dispute is submitted to a third party (the
arbitrator) who resolves the dispute after hearing a presentation by both parties.

Dispute Resolution and Crisis/Incident Management

10
Dispute Resolution and Crises/Incident Management Criminology 6

For a process to be considered arbitration, it must involve an impartial third party, which can be a single person or
a team of people. This person or team is called an arbitrator. To act as this arbitrator is to arbitrate. Arbitrate can also
mean to engage in arbitration, as in If we can’t come to an agreement, we may need to arbitrate.

For the proceedings of arbitration, the dispute is decided either by a single arbitrator or a panel of arbitrators
(usually three in number). An arbitrator performs a similar role to that of a judge in that they are responsible for managing
the proceedings to ensure the parties to the dispute have a reasonable opportunity of presenting their case. At the
conclusion of the arbitration, the arbitrator will deliver an award which is final and binding on the parties.

The term arbitration is especially used in the context of negotiations between businesses and labor unions. When
the two sides can’t agree and negotiations are unproductive, they may seek to pursue arbitration by bringing in an
arbitrator.

An arbitration process in which the arbitrator’s decision must be accepted by both parties is sometimes called
binding arbitration—meaning the arbitrator’s decision is final and legally binding.

Example: After weeks of negotiations stalled and resulted in an impasse, the two sides agreed to enter arbitration.

Some key principles of arbitration include:

1. Voluntary: Arbitration is a voluntary process, meaning that parties must agree to participate in the process. (Boulle
& Nesic, 2017)

2. Confidentiality: Arbitration proceedings are typically confidential, meaning that the details of the dispute and the
outcome of the arbitration are not made public. (Boulle & Nesic, 2017)

3. Impartiality: The arbitrator must be impartial and unbiased, and must make decisions based solely on the
evidence presented during the arbitration. (Redfern & Hunter, 2014)

4. Fairness: The arbitration process must be fair to all parties involved, and provide an opportunity for each party to
present their case. (Holtzmann & Neuhaus, 2012)

5. Finality: The decision of the arbitrator is typically final and binding, meaning that parties cannot appeal the
decision. (Lew & Mistelis, 2013)

6. Efficiency: Arbitration is often used as a more efficient alternative to litigation, with proceedings typically taking
less time and costing less than a court proceeding. (Boulle & Nesic, 2017)

General principles of arbitration

Following are the general principles of the arbitration:

 Arbitration is Consensual: Arbitration is a mutual process that requires the consent of both parties. Arbitration can
only be initiated, if parties have agreed to initiate it. Parties can insert any arbitration clause if it is relevant utilizing
a submission agreement between parties. The parties are also not allowed to unilaterally withdraw from the
arbitration.

 Arbitration is Neutral: Arbitration is a neutral process hence it provides equal opportunity to the parties such as;
Arbitrator, Arbitration Panel, applicable law, language, and venue of the arbitration. This also ensures that no
parties should enjoy the home-court advantage.

 Arbitration is a confidential procedure: The arbitration rule specifically protects the confidentiality of the matter.
The arbitration process provides privacy and restricts unnecessary controversies regarding the case and parties.
Any disclosure made during the procedure may result in decisions and awards. In some circumstances, the
parties are allowed to restrict the access of trade secrets and other confidential information submitted to the
arbitration tribunal.

Dispute Resolution and Crisis/Incident Management

11
Dispute Resolution and Crises/Incident Management Criminology 6

 The parties choose the arbitrator: Each party has the right to choose their arbitrator to whom they think will fit to
handle their case. If the parties have chosen a three-member arbitration tribunal, then each party appoints one of
the arbitrators. Then the two selected arbitration shall agree on the presiding arbitrator. The center can also
suggest the potential arbitrator with relevant expertise or may directly appoint members of the arbitration tribunal.

 The decision of the arbitral tribunal is final and easy to enforce: The decision of the arbitral tribunal is final and
known as Award. The decision of the arbitration tribunal must be final and binding on both parties. Arbitration
awards can be easily enforced in other nations than court proceedings.

What is Domestic Arbitration?

 Is a form of alternative dispute resolution (ADR) where one or more person(s) are appointed to hear a case that
takes place within one jurisdiction. The award is binding and enforceable in court.

What Is International Arbitration?

International arbitration is similar to domestic court litigation, but instead of taking place before a domestic court it
takes place before private adjudicators known as arbitrators. It is a consensual, neutral, binding, private and enforceable
means of international dispute resolution, which is typically faster and less expensive than domestic court proceedings.

What is Commercial Arbitration?

 Means an arbitration that covers matters arising from all relationships of a commercial nature, whether contractual
or not. Relationships of a commercial nature include, but are not limited to, the following commercial transactions:
any trade transaction for the supply or exchange of goods or services; distribution agreements; construction of
works; commercial representation or agency; factoring; leasing; consulting; engineering; licensing; investment;
financing; banking; insurance; joint venture and other forms of industrial or business cooperation; carriage of
goods or passengers by air, sea rail or road.

What is Institutional Arbitration?

An institutional arbitration is one in which a specialized institution intervenes and takes on the role of
administering the arbitration process. Each institution has its own set of rules which provide a framework for the
arbitration, and its own form of administration to assist in the process (LatestLaws.com).

What is Ad hoc Arbitration?

 Means arbitration administered by an arbitrator and/or the parties themselves. An arbitration administered by an
institution shall be regarded as ad hoc arbitration if such institution is not a permanent or regular arbitration
institution in the Philippines (DEPARTMENT CIRCULAR NO. 98)

What is Fast track arbitration?

 Can be defined as a full arbitration process compressed into a shorter period for a quicker resolution of the
dispute
Advantages/disadvantages.

Arbitration is considered more advantageous than court litigation in the Philippines for the following reasons:

 Confidentiality.
 Shorter time-scale.
 Parties can appoint arbitrators based on their special knowledge, skill or experience.
 Parties have more flexibility in the conduct of and in selecting the rules that govern the proceedings.

Dispute Resolution and Crisis/Incident Management

12
Dispute Resolution and Crises/Incident Management Criminology 6

 The finality of the award. The modification or reversal of arbitral awards is legally possible only on very stringent
and specified grounds unlike decisions rendered in court litigation.
 The guarantee of the impartiality, fairness and independence of arbitrator(s).

On the other hand, the disadvantages of resolving a dispute through arbitration in the Philippines are:

 The final decision of an arbitrator is difficult to overturn even if erroneous with respect to the merits.
 The cost of arbitration has risen dramatically in recent years.
 Some pieces of evidences which are, under the Rules of Court, obviously inadmissible, can be admitted and
considered by the arbitral tribunal.
 The weight placed on evidence by the tribunal may not be very clear to the parties.
 Third party joinder is limited or may even be prohibited

What legislation applies to arbitration?

Arbitration in the Philippines is regulated by the:

 Civil Code of the Philippines.

 Republic Act 876 otherwise known as the Arbitration Law.
 Republic Act 9285 otherwise known as the Alternative Dispute Resolution Act of 2004 (Alternative Dispute
Resolution Act of 2004).
 Supreme Court's A.M. No. 07-11-08-SC 01 September 2009 or the Special Rules of Court on Alternative Dispute
Resolution.

Philippine law, under Alternative Dispute Resolution Act of 2004, has adopted in its entirety the UNCITRAL Model
Law (Model Law). Therefore, some provisions of the Model Law, such as the definition of international arbitration,
appointment of arbitrators, and jurisdiction of the arbitral tribunal, have been made applicable to domestic arbitration.

Mandatory legislative provisions

Regardless of the agreement of the parties, domestic awards can be vacated on the following grounds (rule 11.4,
Special Rules of Court on Alternative Dispute Resolution):

 The arbitral award was procured through corruption, fraud or other undue means.
 There is evidence of partiality or corruption in the arbitral tribunal or any of its members.
 The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of
any party.
 One or more of the arbitrators was disqualified to act as such under the law and deliberately refrained from
disclosing this disqualification.
 The arbitral tribunal exceeded its powers, or imperfectly executed them, so that a complete, final and definite
award on the subject matter submitted to them was not made.
 The arbitration agreement did not exist, is invalid or is otherwise unenforceable.
 A party to arbitration is a minor or a person judicially declared to be incompetent.

The state policy favoring arbitration, notwithstanding, there are a few matters that cannot be subject to arbitration in
the Philippine setting: (section 6, Republic Act 9285 otherwise known as the Alternative Dispute Resolution Act of 2004
and Article 2035, Civil Code of the Philippines):

The following matters cannot be the subject of arbitration

 Labor disputes covered by the Labor Code.

 Civil status of persons.
 Validity of marriage.
 Any grounds for legal separation.
 Jurisdiction of courts.

Dispute Resolution and Crisis/Incident Management

13
Dispute Resolution and Crises/Incident Management Criminology 6

 Future legitime (that is, the future right of an heir to the portion of the deceased's property which he is entitled
under the law regardless of the provisions in the predecessor's will).
 Criminal liability.
 Future support (that is, the right to the support of spouses, descendants, ascendants and siblings at some future
time).

Limitation

There is no specific Philippine legal provision that governs limitation periods in arbitration proceedings. However,
as the right to arbitrate arises from a written contract between the parties, the general law of limitation may apply, which
states that proceedings must be commenced within ten years from the date the right to institute arises under the written
contract of the parties (Article 1144, Civil Code of the Philippines (Civil Code)).
However, nothing prohibits the parties, from agreeing on a different period of limitation as well as the grounds for
suspension of the time limits. The usual causes like force majeure are applicable and contracting parties can establish
such stipulations, clauses, terms and conditions as they deem convenient, provided they are not contrary to law, morals,
good customs, public order, or public policy (Article 1306, Civil Code).

However, the Philippine Supreme Court recognizes the equitable defense of laches (that is, the failure or neglect,
for an unreasonable and unexplained length of time, to do that which, by exercising due diligence could or should have
been done earlier). It is negligence or omission not to assert a right within a reasonable time, warranting the presumption
that the party entitled to assert his right has either abandoned or declined to assert it ( Heirs of Nieto vs. Municipality of
Meycauayan, 540 SCRA 100 (2007)).

Arbitration Process

Case filed Arbitration Process Preliminary Hearing and Scheduling Order Discovery Process

Hearings/Mediation Arbitration Hearing Post-Arbitration Briefs Final Arbitration Award

The Negotiation

 Negotiation is a process where two parties in a conflict or disagreement try to reach a resolution together. During
a negotiation, the parties or their representatives (lawyers) discuss the issues to come to a resolution.

 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 themFootnote1. 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”Footnote2, 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.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also be applied within
the context of other dispute resolution processes, such as mediation and litigation settlement conferences.

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.

Dispute Resolution and Crisis/Incident Management

14
Dispute Resolution and Crises/Incident Management Criminology 6

 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)).

 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 as specified in the Access to Information
Act and the Privacy Act.

 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.

Advantages of negotiation

 In procedural terms, negotiation is probably the most flexible form of dispute resolution as it involves only those
parties with an interest in the matter and their representatives, if any. The parties are free to shape the
negotiations in accordance with their own needs, for example, setting the agenda, selecting the forum (public or
private) and identifying the participants. By ensuring that all those who have an interest in the dispute have been
consulted regarding their willingness to participate and that adequate safeguards exist to prevent inequities in the
bargaining process (i.e., an imbalance in power between the parties), the chances of reaching an agreement
satisfactory to all are enhanced.
 Like any method of dispute resolution, negotiation cannot guarantee that a party will be successful. However,
many commentators feel that negotiations have a greater possibility of a successful outcome when the parties
adopt an interest-based approach as opposed to a positional-based approach. By focusing on their mutual needs
and interests and the use of mechanisms such as objective standards, there is a greater chance of reaching an
agreement that meets the needs of the parties. This is sometimes referred to as a “win-win” approach.
 Negotiation is a voluntary process. No one is required to participate in negotiations should they not wish to do so.
 There is no need for recourse to a third-party neutral. This is important when none of the parties wants to involve
outside parties in the process, e.g., the matter to be discussed or the dispute to be resolved may be highly
sensitive in nature.
 Unlike the outcomes of certain adjudicative processes, e.g., the courts, the outcome of a negotiation only binds
those parties who were involved in the negotiation. The agreement must not, of course, be contrary to Canadian
law (e.g., an agreement to commit a crime would be illegal and thus void for public policy reasons).
 Assuming that the parties are negotiating in good faith, negotiation will provide the parties with the opportunity to
design an agreement which reflects their interests.
 Negotiations may preserve and in some cases even enhance the relationship between the parties once an
agreement has been reached between them.
 Opting for negotiation instead of litigation may be less expensive for the parties and may reduce delays.

Disadvantages of negotiation

 A particular negotiation may have a successful outcome. However, parties may be of unequal power and the
weaker party(ies) may be placed at a disadvantage. Where a party with an interest in the matter in dispute is
excluded or inadequately represented in the negotiations, the agreement's value is diminished, thereby making it
subject to future challenge. In the absence of safeguards in the negotiating process, the agreement could be

Dispute Resolution and Crisis/Incident Management

15
Dispute Resolution and Crises/Incident Management Criminology 6

viewed by a participant or others outside the process as being inequitable, even though the substance of the
agreement may be beyond reproach.
 A successful negotiation requires each party to have a clear understanding of its negotiating mandate. If
uncertainty exists regarding the limits of a party's negotiating authority, the party will not be able to participate
effectively in the bargaining process.
 The absence of a neutral third party can result in parties being unable to reach agreement as they be may be
incapable of defining the issues at stake, let alone making any progress towards a solution.
 The absence of a neutral third party may encourage one party to attempt to take advantage of the other.
 No party can be compelled to continue negotiating. Anyone who chooses to terminate negotiations may do so at
any time in the process, notwithstanding the time, effort and money that may have been invested by the other
party or parties.
 Some issues or questions are simply not amenable to negotiation. There will be virtually no chance of an
agreement where the parties are divided by opposing ideologies or beliefs which leave little or no room for mutual
concessions and there is no willingness to make any such concessions.
 The negotiation process cannot guarantee the good faith or trustworthiness of any of the parties.
 Negotiation may be used as a stalling tactic to prevent another party from asserting its rights (e.g., through
litigation or arbitration).

Objective of a Negotiation

 Negotiations allow the parties to agree to an outcome which is mutually satisfactory. The actual terms of the
agreement must be concluded by the parties and can be as broad or as specific as the parties’ desire. A
negotiated settlement can be recorded in the form of an agreement. Once signed, has the force of a contract
between the parties. If the settlement is negotiated in the context of a litigious dispute, then the parties may wish
to register the settlement with the court in conformity with the applicable rules of practice.

Key Features of Negotiation

The key features of negotiation are:

 It’s an informal process with no set procedure;

 It can be in writing or be verbal (in person);
 It can take place between the parties directly or their lawyers;
 It generally involves both parties making “concessions” or compromises to reach a solution acceptable to both
parties;
 The parties are in control of the outcome. An agreement can only be reached with their consent;
 Negotiations are private and confidential. They cannot be used against you in court; and
 The settlement reached at the end of a negotiation is often a “contract” that is binding on the parties.

The Mediation

Is 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.

Mediation is a means to resolve disputes without resorting to litigation or other adversarial modes of dealing with
conflict. By seeking a "win-win" solution, acceptable to both sides, mediation promotes better understanding among
disputants. It also costs less, results in more lasting agreements than litigation, and can be used for emotionally sensitive
disputes where other forms of conflict resolution are inappropriate.

As a result, mediation has proven useful in a wide range of arenas including parent-child and family disputes,
divorce, business and organizational disputes, environmental conflicts, community/neighborhood conflicts, and victim-
offender mediation.

Dispute Resolution and Crisis/Incident Management

16
Dispute Resolution and Crises/Incident Management Criminology 6

Mediation activities makes extensive use of negotiation skills, communication skills, conflict dynamics and
analysis, and mediation concepts and techniques.

What is the Purpose?

To reach a SETTLEMENT of complaints based on:  Age  Race  Color  Creed  Sex  Sexual Orientation
 Gender Identity  National Origin  Pregnancy  Mental Disability  Physical Disability  Religion  Retaliation 
Familial Status  Marital Status.

The Central Goals of Mediation are to:

o Reduce obstacles to communication between participants

o Address the needs of everyone involved
o Maximize the discovery of alternatives
o Help participants to achieve their own resolution
o Provide a proven model for future conflict resolution

Why Mediation?

Mediation should be considered when prior attempts at resolving conflicts have failed or when people need third
party assistance in confronting issues. It is an alternative to filing formal charges.
Mediation usually succeeds because it's...

 Efficient: Sessions are usually held within two weeks at a convenient time.
 Effective: Issues causing the conflict are identified and addressed.
 Confidential: The content of the mediation is private, known only to participants.
 Empowering: The ultimate authority belongs to the participants themselves.

How does it work?

 After a complaint has been screened for further investigation, it is forwarded to the mediation unit;
 The complainant and respondent are sent information explaining mediation;
 The mediation coordinator contacts the parties to determine whether both parties are interested in mediation
as well as to explain mediation and answer any questions;
 If both parties agree, a meeting is scheduled within a few weeks;
 If the complaint is resolved, the mediator drafts the settlement agreement that day for both parties’ signature.

Who is the Mediator?

Is a person who conducts mediation. Who are usually experienced attorneys as well as highly trained staff
members to act as neutral and impartial mediators.

What is the Role of the Complainant and Respondent?

 Approach mediation in good faith and with an open mind with realistic expectations regarding the possible
outcome of your case;
 Willing to listen to the other side;
 Participate in the mediation;
 Try to settle the dispute with the assistance of the mediator

What is the difference between Mediation and Investigation?

Dispute Resolution and Crisis/Incident Management

17
Dispute Resolution and Crises/Incident Management Criminology 6

The mediator does not have authority to decide who prevails but acts as a facilitator. While investigation, the
purpose is to determine if there is sufficient evidence to prove that discrimination has occurred.

What are the Advantages of Mediation?

 Mediation is available at no cost to the parties.

 Mediation is a faster way to resolve your case than litigation or further investigation. A mediation conference
can be scheduled soon after the complaint has been screened in.
 Mediation gives both sides the chance to be heard and give their side of the story. It also allows each side the
opportunity to work toward a resolution.
 Each side can settle the complaint at a mediation conference that will close the case at the Iowa Civil Rights
Commission.
 It’s a Win/Win solution for everyone – there are no losers.
 Mediation is confidential. Information shared at the conference will not be shared with anyone else.

The Court-Annexed Mediation

What is Court-Annexed Mediation (CAM)?

Court-Annexed Mediation is a voluntary process conducted under the auspices of the court by referring the parties to the
Philippine Mediation Center (PMC) Unit for the settlement of their dispute, assisted by a Mediator accredited by the Supreme Court.

Judicial Dispute Resolution

Is a process whereby the judge (called the JDR Judge) employs conciliation, mediation or early neutral evaluation
in order to settle a case at the pre-trial stage. In the event the Judicial Dispute Resolution fails, then another judge (called
the trial judge) shall proceed to hear and decide the case.

The Supreme Court recently issued a Guidelines for the Conduct of Court-Annexed Mediation (“CAM”) and
Judicial Dispute Resolution (“JDR”) in Civil Cases (“Guidelines”) dated 09 February 2021 in view of the amendments to
the Rules of Civil Procedure which became effective in May 2020.

Court-Annexed Mediation and Judicial Dispute Resolution are confidential mediation or conciliation processes in civil
cases that are conducted among disputing parties under the supervision of the court after the latter has acquired
jurisdiction of the dispute. These are generally conducted during or after the pre-trial or preliminary conference but before
the case proceeds to trial.

The purpose of Court-Annexed Mediation and Judicial Dispute Resolution is to encourage the parties to amicably
settle their disputes or reach a compromise agreement to avoid protracted and costly litigation. The parties, however, are
not compelled to settle their dispute during the mediation or conciliation as such decision is purely voluntary on their part,
but they are “expected to negotiate in good faith and exert earnest efforts towards settlement” (Guidelines, Chapter 1,
Sec. 2).

What are the cases subject to CAM?

The following cases shall be referred to CAM:
1. All ordinary civil cases, including mediatable permissive or compulsory counterclaim or cross-claim as pleaded in
the answer, complaint-in-intervention, and third (fourth, etc.)-party complaint, except those which cannot be the
subject of a compromise under Article 2035 of the New Civil Code;
2. All special civil actions, except under Rules 63, 64, 65, 66, and 71 of the Rules of Court;

Dispute Resolution and Crisis/Incident Management

18
Dispute Resolution and Crises/Incident Management Criminology 6

3. Special proceedings cases for settlement of estate where the dispute involves claims against the estate, or the
distribution or partition of estate in intestate proceedings;
4. All those cases involving issues under the Family Code and other laws, in relation to support, custody, visitation,
property relations, guardianship of minor children, and other issues which can be the subject of a compromise
agreement;
5. Intellectual property cases;
6. Commercial or intra-corporate controversies;
7. Environmental cases, subject to the provisions in Section 3, Rule 3 of the Rules of Procedure for Environmental
Cases (A.M. No. 09-6-8- SC); and
8. Civil cases covered by the Rule on Summary Procedure.

On the other hand, the following civil cases may be referred to JDR:

The following cases shall be referred to JDR by Judges in areas declared as JDR sites:

a. The cases enumerated in Section 1, except environmental cases, may be referred to JDR upon failure of
settlement or refusal to mediate in CAM only if the judge of the court to which the case was originally filed is
convinced that settlement is still possible;

b. The following cases, brought on appeal from the exclusive and original jurisdiction granted to the first-level courts
under the Judiciary Reorganization Act of 1980, may be referred to JDR in areas declared as JDR sites, if the
RTC Judge is convinced that settlement is still possible;

1. all civil cases and settlement of estate, testate and intestate;

2. all cases of forcible entry and unlawful detainer;
3. all civil cases involving title to, or possession of, real property or an interest therein; and
4. habeas corpus cases decided by the first level court in the absence of the any Regional Trial Court
Judge.
(Guidelines, Chapter 1, Sec. 2)

In addition to the civil cases cited above, the Guidelines also allows either or both of the parties “in actions or
proceedings where compromise is not prohibited by law,” to request the court, “by oral manifestation or written motion
after the pre-trial/preliminary conference, or at any stage of the proceedings,” to refer their dispute to CAM and JDR if
there are still factual issues to be resolved (Guidelines, Chapter 1, Sec. 3).

What are the cases that cannot be referred to CAM and JDR?

The following cases shall not be referred to CAM and JDR:

1. Civil cases which by law cannot be compromised, as follows:

 The civil status of persons;

 The validity of a marriage or a legal separation;
 Any ground for legal separation;
 Future support;
 The jurisdiction of courts; and
 Future legitime.

2. Civil aspect of non-mediatable criminal cases;

3. Petitions for Habeas Corpus;
4. All cases under Republic Act No. 9262 (Violence against Women and Children); and
5. Cases with pending application for Restraining Orders/Preliminary Injunctions.

However, in cases covered in numbers 1, 4 and 5 where the parties inform the court that they have agreed to
undergo mediation on some aspects thereof, e.g., custody of minor children, separation of property, or support pendente
lite, the court shall refer them to mediation.

Dispute Resolution and Crisis/Incident Management

19
Dispute Resolution and Crises/Incident Management Criminology 6

How Court-Annexed Mediation is conducted

After the pre-trial/preliminary conference, the court shall issue the Pre-Trial/Preliminary Conference Order
referring the parties to the mandatory CAM and shall direct the parties to proceed and personally appear at the Philippine
Mediation Center Unit (“PMCU”) for mediation proceedings (Guidelines, Chapter 2 (A), Sec. 1).
During the initial appearance of the counsels and parties on the date set by the PMCU, and after presenting proof
that mediation fees were paid, the parties shall select a mutually acceptable mediator among the roster of mediators at
the PMCU (Guidelines, Chapter 2(B), Secs. 2-4). If they are unable to jointly select a common mediator, the PMCU shall
choose the mediator among its available mediators (Guidelines, Chapter 2(B), Secs. 2-4).

The mediation must be completed within thirty (30) calendar days from the date of the order referring the case to
CAM without further extension (Guidelines, Chapter 2(B), Sec. 8). In the event of successful settlement, the PMCU shall
submit to the referring judge a Mediator’s Report together with a copy of the compromise agreement. The referring judge
shall evaluate the compromise agreement and either approve or disapprove the same, or ask for clarification of any
vague, defective, or unenforceable portion of the agreement that must be amended by the parties (Guidelines, Chapter
2(B), Secs. 10).

If no settlement was reached, the PMCU shall submit a Mediator’s Report and the “referring judge shall
determine, in the hearing set for such purpose, if settlement is still possible” and if determined to be so, shall refer the
case to the JDR Judge for JDR proceeding (Guidelines, Chapter 2(C), Sec. 1).

How Judicial Dispute Resolution is conducted

It is the JDR Judge, who has undergone skill-based training in JDR, who is authorized to conduct the JDR
proceeding (Guidelines, Chapter 2(C), Secs. 3-4.). The JDR proceeding “shall be terminated within a non-extendible
period of fifteen (15) calendar days from receipt of the [referral order]” (Guidelines, Chapter 2(C), Sec. 3).

The parties and their counsels shall likewise appear on the scheduled date for the JDR, and during the
proceeding, the JDR judge shall act as “mediator, conciliator, and/or neutral evaluator to actively assist and facilitate
negotiations among the parties” (Guidelines, Chapter 2(C), Sec. 5).

If full settlement is reached by the parties, they “shall draft a compromise agreement, which shall be submitted to
the JDR Judge for judgment upon compromise, enforceable upon execution” (Guidelines, Chapter 2(C), Sec. 7). If only
partial settlement is reached, the parties shall “submit the terms [of the partial settlement] for the approval of the JDR
Judge and rendition of judgment upon partial compromise”, but the unsettled part of the dispute shall proceed to trial
(Guidelines, Chapter 2(C), Sec. 7). However, if no settlement was reached in the JDR, the JDR judge shall return the
case to the judge for appropriate action.

Imposable Sanctions in case of Non-Appearance in CAM and JDR

For both CAM and JDR, the parties and their respective counsels shall personally appear before the mediator or
JDR Judge, otherwise sanctions may be imposed upon any party who fails to appear before the mediator or JDR Judge.
Under the Guidelines, the trial court shall impose the following sanctions:

 Dismissal of the case, when there is failure of the plaintiff and counsel to appear without valid cause when so
required; or
 Ex parte presentation of plaintiff’s evidence and dismissal of defendant’s counterclaim when there is failure of the
defendant and counsel to appear without valid cause when so required.(Guidelines, Chapter 2(D), Sec. 4).

Judicial Mediation

 Judicial mediation is an alternative approach to settle disputes before going to main proceeding in court.

Dispute Resolution and Crisis/Incident Management

20
Dispute Resolution and Crises/Incident Management Criminology 6

 If the parties reach an agreement during the judicial mediation, the case can be concluded in the form of an in-
court settlement. Thus the parties avoid trial and judgment from the court. Judicial mediation is applicable to civil
cases, whereas criminal cases cannot be settled in this manner.

What is the Purpose of Judicial Mediation?

 The purpose of judicial mediation is to reach a settlement that the disputing parties can accept. The judicial
mediator, who very often is a judge, assists the parties to reach an agreement. The judicial mediator attempts to
obtain an oversight of the parties’ interests and needs and tries to establish a basis for dialogue that promotes
understanding and agreement between the parties.

What are the advantages of judicial mediation?

When a dispute is settled through judicial mediation none of the parties “win” or ”lose”. The intention is that both
parties” win” through judicial mediation. Judicial mediation is especially suitable for resolving disputes when the parties in
question continue to be in touch after the case is closed, i.e. business associates, neighbors, employer and employee,
landlord and tenant etc. But judicial mediation can also be an alternative approach in most other cases too.

How do you receive judicial mediation?

 In order to receive an offer of judicial mediation, the plaintiff must file a writ of summons to the court. The writ of
summons is then served on the defendant. Both parties will then receive an offer of judicial mediation.

How are the proceedings of the case during judicial mediation?

 If the parties have legal representatives, they attend the judicial mediation together. However, during the judicial
mediation the legal representatives have a more passive role as they attend first and foremost as the parties’
professional judicial counsels and not to argue the case. Throughout the judicial mediation the judge focuses on
the parties’ factual interests rather than legal arguments.

The mediating judge has a different role in judicial mediation than in ordinary court proceedings. The judge has no
authority to settle the case in judicial mediation. Thus, as a general rule, the presentation of evidence is excluded in
judicial mediation. The judge reads the case papers in advance and he or she focuses on looking ahead as well as
resolving the matter at hand rather than hearing the details of events that have taken place between the parties in the
past.

What happens if judicial mediation fails?

 Judicial mediation succeeds in 70-80 % of the cases. If the disputing parties are unable to reach an agreement,
the case is referred to another judge for further dealings. As the judicial mediator is under obligation of
confidentiality, the judge taking over the case will not be in a position of knowing the details of the mediation. Even
if a case is not resolved through judicial mediation, the judicial mediation is likely to facilitate the subsequent
process of the case.

Litigation as modes of Dispute Resolution

Litigation is generally thought of as the process of resolving rights-based disputes through the court system, from
filing a law suit through arguments on legal motions, a discovery phase involving formal exchange of information,
courtroom trial and appeal. Litigation also encompasses administrative or regulatory processes for establishing legal
rights and resolving disputes.

What is Litigation?

 Litigation refers to the process of resolving disputes by filing or answering a complaint through the public court
system.
 Refers to the rules and practices involved in resolving disputes in the court system.

Dispute Resolution and Crisis/Incident Management

21
Dispute Resolution and Crises/Incident Management Criminology 6

 Litigation is the process of taking a dispute to a court of law. If parties cannot agree between themselves about
the fair and proper outcome of a dispute they will present their respective cases to a court for its judgment. It is a
broad term that describes a long and sometimes complex process.

What kind of cases can be resolved using litigation?

 There are a wide range of cases which can be resolved using litigation. These can include:
 Commercial disputes e.g. claims for breach of contract such as damaged goods or recovery of debts;
 Matrimonial matters e.g. determining the extent of a spousal claim in a divorce action;
 Claims against the state e.g. A judicial review of a planning decision;
 Personal injury claims e.g. monetary claims arising out of an accident where a person suffered harm;
 Employment disputes e.g. a claim for wrongful dismissal.

What is the difference between litigation, arbitration and mediation?

 Litigation is the Court method of resolving a dispute where a judge decides the case. Arbitration and mediation
are both forms of Alternative Dispute Resolution (known as ‘ADR’).

 Arbitration is a non-court method where an independent arbitrator is appointed by the parties to make a decision
which is usually confidential and binding.

 Mediation is another non-court method which is flexible, voluntary and confidential. An independent mediator
helps both parties to work towards a negotiated settlement if possible.

The Litigation Process

The litigation process can be broken down into five steps. Some of these steps can be broken down further into
notable pieces of the litigation process:

1. Investigation and Demands

2. Demand Letters and Pre-Trial Negotiation
3. Out-of-Court Options: Alternative Dispute Resolution
a. Facilitation
b. Mediation
c. Arbitration

4. The Courtroom
a. Discovery
b. Initial Motions
c. Trial

Investigation and Demands

Litigation has its start when a client approaches an attorney with their dispute. Whether a tenant has a mountain
of unpaid rent, or a business partner made off with company profits, the attorney will review the potential client’s case.
Should they accept the client, litigation begins in earnest.

The first part of the litigation is an informal investigation into the facts. The attorney will conduct research into the
exact details, getting any and all accessible documentation and proof that builds into the client’s side of the case. This
investigation is crucial for the next step in the litigation process, sending a demand letter.

Demand Letters and Pre-Trial Negotiation

The attorney or law firm will compose and deliver a demand letter (or eviction notice, or other forms of notification
depending on the type of case). This demand letter takes all of the information gathered in the informal investigation,

Dispute Resolution and Crisis/Incident Management

22
Dispute Resolution and Crises/Incident Management Criminology 6

presents it to the offending party, and states desired compensation — typically higher than the attorney expects to
receive. The goal of the demand letter is to convince the opposing party that there is such good evidence of their
wrongdoing by law that the accuser would absolutely win if the case were to go to court.

The defending party responds with a letter offering a lower amount of compensation — usually lower than they
would be willing to pay — at which point there may be more counteroffers negotiating a settling price. If they can agree on
a price, they settle, and the case never goes to court. The litigation process stops here in that instance.
Out-Of-Court Options: Alternative Dispute Resolution

If parties cannot reach an agreed settling price, the accusing party (referred to as the “plaintiff”) and the accused party
(referred to as the defendant) will usually seek “Alternative Dispute Resolution” — options for resolution other than a full-
blown courtroom trial. This typically takes one of three forms, facilitation, mediation, or arbitration.

 Facilitation is typically the least formal of the three alternative dispute resolutions mentioned here. It involves an
unbiased attorney (or sometimes, panel of attorneys) that helps the two parties negotiate and can decide on
certain disputed facts or offer estimations of actual value of damages. The goal of any alternative dispute
resolution is an out-of-court settlement.

 Mediation Still an informal affair, mediations are similar to facilitations in many ways. An attorney, or panel,
reviews facts, helps negotiate between parties, and seeks a settlement out of court. At the end of mediation or
facilitation, the mediator will often set a specific dollar value on the case. This number can then be agreed to by
both sides, or the case can move further towards the courtroom — and high expenses.

 Arbitration is the most formal of the three mentioned here. It is also the most expensive, but still cuts costs
relative to a real court case, as rules are less strict. Less work is created for attorneys, and fewer people are
involved. An arbitration is similar to an in- court case, but instead of judge and jury, the case is presented to one
or more attorneys who decide the verdict according to their understanding of the law.

The Courtroom

Litigation Elements. Most litigations involve four distinct elements or phases.

 First is the Discovery phase. The legal discovery process is where the plaintiff and defendant gather evidence to
support their case. It consists of sending the other party a written request to explain their side. It also requires
reviewing documents, paperwork, and related incidents in the past. During this process, it is essential to maximize
time, accuracy, and organization.

 The next phase is filing a Motion. Sometimes, either party is not willing or able to enter into a settlement.
Because of that, one might submit a formal request, a motion, to take the case into court.

 The third element is gathering Expert Witnesses. Here, subject matter experts act as witnesses to help support
legal claims. It usually includes credible professionals like private investigators, doctors, and accountants.

 The last element is the Trial. During this phase, all evidence and facts are presented before a jury and judge.
They will ultimately resolve the case with a final verdict.

Post-Trial Litigations

Contrary to what most people think, litigation doesn’t end when a decision is given by a judge. Either party still has many
legal options in regards to moving forward. This can extend the litigation process. As long as there is a dispute between
the plaintiff and defendant, they will still both be in litigation.

This is common for cases that involve a division of assets or custody hearings.

The bottom line is that litigation can be as quick or as drawn out as the circumstances, or the parties, dictate.

Dispute Resolution and Crisis/Incident Management

23
Dispute Resolution and Crises/Incident Management Criminology 6

Dispute Resolution and Crisis/Incident Management

24