LESSON 4

1. Negotiation

The best method of resolving disputes is through negotiation. Although the two most
popular ADR methods are arbitration and mediation, negotiation is nearly often used to
settle disputes first.

Through negotiation, a problem can be resolved by getting the parties together. The
fundamental benefit of this method of dispute resolution is that it gives the parties
themselves the ability to direct the course of action and the resolution.

Compared to other forms of ADR, negotiation is far less formal and offers a lot more
freedom.

It is optional and non-obligatory. Without the aid of a neutral third party, the parties
attempt to resolve their differences among themselves. Each negotiator is associated
with a certain "side," and they will examine the situation from that perspective. In order
to avoid unnecessarily rising costs, negotiation should be considered, started as soon
as feasible, and a sincere effort should be made to reduce the parties' areas of
disagreement. Even when court actions have been initiated and are still pending,
negotiation should still be taken into account. The parties will often try to reach an
amicable resolution via discussions that are conducted "without prejudice."

The rights of the parties are not harmed if the negotiations fail to resolve the issue. The
re**tions and relationships of the parties can be preserved through negotiation because
it is a private and confidential conflict settlement alternative.

Why negotiations?

As our wants, ambitions, goals, and positions conflict with those of others, conflicts arise
in both our personal and professional lives. Without compromise, differences may grow
into disputes, bitter resentment, and animosity. The goal of negotiation is to settle these
disagreements in a way that benefits both parties and leaves room for future discussion.

THE BENEFITS OF NEGOTIATION

Negotiation is very beneficial when used:

 By utilizing "preventive diplomacy," it is possible to stop a dispute from

escalating.
 By enlarging the "pie," it can create vast new areas of interest for both parties.
 By swiftly resolving disputes, it saves both time and money.
 By enhancing communication, the likelihood of a successful outcome is
increased.
  In court, the judge renders judgment. The parties to a negotiation control the
outcome.
 It enables the parties to customize the choice to suit their own needs.
 Both complex and straightforward everyday problems can be resolved using it.
 It can be applied to settle a disagreement or strike a deal.

A more recent kind of ADR that is frequently used in divorce and family court is
collaborative law. Each party retains legal counsel, and the parties meet to negotiate a
settlement with the help of other experts, such as financial advisors or divorce coaches.
Because the parties typically agree to negotiate terms that make the process amicable,
such a commitment to refrain from using specific terminology or leveling allegations,
collaborative law has a similar vibe to mediation. The inability of the parties to use or
threaten to use the court system is one distinctive feature of collaborative law. The
collaborative law procedure ends and the attorneys are barred from further involvement
in the case if one of the parties makes a litigation threat.

LESSON 5
Mediation
At the end of the learning period, the student should be able to Analyze and relate the
importance of mediation in the use of ADR
Mediation

What is the State policy on Mediation?

In applying and construing the provisions of these Rules, consideration must be given to
the need to promote candor of parties and mediators through confidentiality of the
mediation process, the policy of fostering prompt, economical and amicable resolution
of disputes in accordance with principles of integrity of determination by the parties and
the policy that the decision-making authority in the mediation process rests with the
parties.

A party may petition a court before which an action is prematurely brought in a matter
which is subject of a mediation agreement, if at least one party so requests, not later
than the pre-trial conference or upon the request of both parties thereafter, to refer the
parties to mediation in accordance with the agreement of the parties. (Article 3.2 IRR)

What is Mediation?

Mediation means a voluntary process in which a mediator, selected by the disputing

parties, facilitates communication and negotiation, and assists the parties in reaching a
voluntary agreement regarding a dispute. (Sec. 3, par. q, RA 9285)

Who is a Mediator?

Mediator means a person who conducts mediation. (Sec. 3, par. r, RA 9285)

What is a Mediation Party?

This means a person who participates in a mediation and whose consent is necessary
to resolve the dispute. (Sec. 3, par. s, RA 9285)

What is Mediation-Arbitration?

"Mediation-Arbitration" or Med-Arb is a step dispute resolution process involving both

mediation and arbitration. (Sec. 3, par. t, RA 9285)

What is a Mini-trial?
This means a structured dispute resolution method in which the merits of a case are
argued before a panel comprising senior decision makers with or without the presence
of a neutral third person after which the parties seek a negotiated settlement.

What is the scope of application of the Implementing Rules?

These Rules apply to voluntary mediation, whether ad hoc or institutional, other than
court-annexed mediation and only in default of an agreement of the parties on the
applicable rules.

These Rules shall also apply to all cases pending before an administrative or quasi-
judicial agency that are subsequently agreed upon by the parties to be referred to
mediation. (Article 3.1., IRR, RA 9285)

Define Ad hoc, Institutional and Court-Annexed Mediation.

1. Ad hoc Mediation means any mediation other than institutional or court-annexed

2. Institutional Mediation means any mediation process conducted under the rules of a
mediation institution

3. Court-Annexed Mediation means mediation process conducted under the auspices of

the court and in accordance with Supreme Court approved guidelines, after such court
has acquired jurisdiction of the dispute.

SELECTION OF A MEDIATOR

Do parties have the right to select a Mediator?

Yes. The parties have the freedom to select a mediator. The parties may request the
Office for Alternative Dispute Resolution (OADR) to provide them with a list or roster or
the resumes of its certified mediators. The OADR may be requested to inform the
mediator of his/her selection. (Article 3.3., IRR, RA 9285)

Is it required that a Mediator has special qualifications by background or

profession?

As a Rule, ADR act does not require that a mediator shall have special qualifications by
background or profession unless the special qualifications of a mediator are required in
the mediation agreement or by the mediation parties. (Sec. 13, RA 9285)

May a party waive his right to participate in Mediation?

Yes, except as otherwise provided in RA 9285, a party may designate a lawyer or any
other person to provide assistance in the mediation.
A lawyer of this right shall be made in writing by the party waiving it. A waiver of
participation or legal representation may be rescinded any time. (Sec. 14, RA 9285)

Note: Rescind means to revoke or cancel.

When may a Mediator be replaced?

If the mediator selected is unable to act as such for any reason, the parties may, upon
being informed of such fact, select another mediator. (Article 3.4., IRR, RA 9285)

What are the grounds wherein a Mediator may refuse or withdraw such?

A mediator may refuse from acting as such, withdraw or may be compelled to withdraw
from mediator proceedings under the following circumstances:

a. If any of the parties so requests the mediator to withdraw;

b. The mediator does not have the qualifications, training and experience to enable
him/her to meet the reasonable expectations of the parties;

c. Where the mediator's impartiality is in question

d. If continuation of the process would violate any ethical standards;

e. If the safety of any of the parties would be jeopardized

f. If the mediator is unable to provide effective services;

g. In case of conflict of interest; and

h. In any of the following instances, if the mediator is satisfied that:

 One or more of the parties is/are not acting in good faith;

 The parties' agreement would be illegal or involve the commission of a crime;
 Continuing the dispute resolution would give rise to an appearance of
impropriety;
 Continuing with the process would cause significant harm to a non-participating
person or to the public; or
 Continuing discussion would not be in the best interest of the parties, their minor
children or the dispute resolution process. (Article 3.5., IRR, RA 9285)

LESSON 6
Restorative Justice
Restorative Justice

Overview

After a crime, a victim’s life is forever changed regardless of the type of crime that
occurred. Often our responses to these events are to seek revenge or make the other
person pay for their actions in an attempt to find justice. Rarely do those attempts meet
our needs for closure or peace of mind. Another choice to these feelings is a restorative
approach to justice that allows both victims and offenders a chance to hear each other
out.

 Restorative Justice recognizes that crime hurts everyone– victims, offenders and
community. It creates an obligation to make things right.
 The foundation of Restorative Justice is genuine accountability
“Restorative justice is a process to involve, to the extent possible, those who have a
stake in an offense and to collectively identify and address harms, needs and
obligations, in order to heal and put things right as possible.”- Howard Zehr

Crime is a violation of people and relationships.

Crime creates harms, needs and obligations.

Individuals most affected should be meaningfully included and empowered.

WHAT IS RESTORATIVE 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 an obligation to make things right 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.
Thus, the restorative justice process is actively participated in by the victim, the
offender, and/or any individual or community member affected by the crime to
resolve conflicts resulting from the criminal offense, often with the help of a fair
and impartial third party.
 Is a process whereby the victims/offenders and community- come together to
resolve collectively how to deal with the aftermath of the offense and its

implications in the future.

Consequently, the goal of the government is to establish a more enlightened and
humane correctional system that will promote the reformation of offenders and thereby
reduce the incidence of recidivism.

As such, the Parole and Probation Administration (PPA) is empowered to create

innovative policies, programs, and activities to facilitate the reintegration of its clientele
into the mainstream of society and consequently prevent the commission of crime.
Therefore, PPA adopts Restorative Justice as one of its rehabilitation programs which
utilizes restorative processes and aims to achieve restorative outcomes.

In the restorative justice paradigm, crime is no longer defined as an attack against the
state and a violation of law but rather an offense by one person against the other and a
violation of relationships. It is based on the recognition of humanity of both offender and
victim. The goal of restorative justice is to heal the wounds of every person affected by
the offense, including the victim and the offender. Options are explored that focus on
repairing the damage.

Under this process, victims and offenders assume central roles. The process does not
focus on vengeance and punishment but seeks to heal both the community and the
individuals involved. This is done by a process that puts the notion of reparation, not
punishment, at the center.
Restorative Justice
ORIGIN OF RESTORATIVE JUSTICE

 The roots of restorative justice can be found throughout the Bible. The scriptural
quote most abused and taken out of context has been that “eye for an eye”.
Public perception of its meaning is usually the opposite of what was intended.
The concept of lex talionis, the law on proportionality, simply says that you
should never claim what is more than the value of what is damaged. If property
worth 100 gold coins is stolen, then you cannot claim 200 coins in return.
 The emphasis in scripture was usually on restitution and restoration, not
vengeance and punishment. Restitution was seen as a way of setting things
right. The focus on crime in biblical times was not so much in individuals as on
the community. Corporate responsibility was central to the Hebrew understanding
of crime. The scriptures renounced any scapegoat that claimed that crime was
only the responsibility of a few evil individuals within the society. When the law
was broken, there was corporate responsibility. Violence and breach of law
pointed to a crisis in the very fabric of the society.

The dialogical and restitutive character of restorative justice is not unique. Similar
values and processes are reflected in several indigenous cultures. An early pioneer of
restorative justice, Howard Zehr, argued that prior to the emergence of the nation state,
wrongdoing was primarily viewed in an interpersonal rather than a legal context. This
era of community justice was far less systematic and generally had a restitutive
character. The personal, customary and negotiated features of community justice were
eventually replaced by a more institutionalized and centralized system of legal justice.
Rather than communities, the state had responsibility to enforce a system of laws and
punishments (Zehr, 1990).

What is an example of restorative justice?

 Examples of restorative processes include mediation, conferencing,

sentencing/support circle and the like. The restorative outcome is the agreement
obtained as a product of a restorative justice process. Examples of restorative
outcomes include restitution, community work service and any other program or
response designed to accomplish reparation of the victim, and the reintegration
of the victims and/or offenders.
BASIC CONCEPT OF RESTORATIVE JUSTICE

 Restorative justice is an alternative mode of restoring and reforming offenders

and restitute victims and the community with pure love and not confrontational. It
also introduces the principles concerning the group or commission which was
tasked for the implementation of the restorative programs.
HOW WAS RESTORATIVE JUSTICE ADOPTED IN THE PHILIPPINES?

 The Commission on Crime Prevention and Criminal Justice, of which the

Philippines is a member-country, through a draft resolution, recommended to the
Economic and Social Council of the United Nations Organization (UNO), the
adoption of the “Basic Principles on the Use of Restorative Justice Programmes
in Criminal Matters”. The said document is a formulation of the UN Standard in
the field of mediation and restorative justice. The Philippines, being a signatory
member-country should ensure adoption of this resolution.

WHAT ARE THE EFFECTS OF RESTORATIVE JUSTICE AS A REHABILITATION

PROGRAM OF Parole and Probation Administration (PPA)?
1. Reintegration of the offenders to the social mainstream and encouraging them to
assume active responsibility for the injuries inflicted to the victims;

2. Proactive involvement of the community to support and assist in the rehabilitation

of victims and offenders;

3. Attention to the needs of the victims, survivors and other persons affected by the
crime as participating stakeholders in the criminal justice system, rather than
mere objects or passive recipients of services of intervention that may be
unwanted, inappropriate or ineffective;

4. Healing the effects of the crime or wrongdoing suffered by the respective

stakeholders; and

5. Prevention of further commission of crime and delinquency.

Benefits of Restorative Justice

1. It views criminal acts more comprehensively; rather than defining crime only as
law breaking, it recognizes that the offenders harm victims, communities and
even themselves
2. It involves more parties; rather than giving key roles only to the government and
the offender, it includes victims and the communities as well.
3. It measures success differently; rather than measuring how much punishment
has been inflicted, it measures how much harm has been repaired or prevented.
4. It recognizes the importance of community involvement and initiative in
responding to and reducing crime, rather than leaving the problem of crime to the
government alone.