PRINCIPLES OF NEGOTIATION, MEDIATION, ARBITRATION, &

RECONCILIATION

The word “conflict” tends to generate images of anger, fighting, and other ugly thoughts that
leave people bruised and beaten. Conflict isn’t uncommon in the workplace, and it isn’t
always good. Conflict is when two people or groups disagree, and the disagreement causes
friction. One party needs to feel that the other’s point of view will have a negative effect on
the final outcome

BIBLICAL CAUSES OF CONFLICTS

James 4:1-2 What causes fights and quarrels among you? Don’t they come from your
desires that battle within you? 2 You desire but do not have, so you kill. You covet but you
cannot get what you want, so you quarrel and fight.

1. 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”,
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 with During a negotiation, the parties or their representatives (lawyers)
discuss the issues to come to a resolution. Before a negotiation, each party should consult a
lawyer. Consulting a lawyer allows each party to be well aware of their rights and duties for
the matter they want to resolve.

Resolution – the action of solving a problem dispute, or contentious matter.

Contentious matter could be contestation, controversy, difference, disagreement,
dissension, quarrel.
Negotiation process
Prior – consult a lawyer
During – parties or their representatives (lawyers) discuss the issues to come into
resolution

Principles of Negotiation

Reason – to produce something better than the results that can be obtained without
negotiation (Fisher er al., 1991)
Goal – an agreement that is acceptable to all parties, to which they remain
committed, and which they indeed implement. (interest-based negotiations)

Positions – wants and demands Interests – reasons behind the position.

BASES OF INTERESTS:
- Distinguish between positions and interests
- Move from positions to interests
- List all the interests according to priority
 - Think of positions as only one of many solutions to the problem.

2. Mediation is a process where a neutral person assists the parties in discussing the matter
and reaching a resolution.
- A neutral person is a person who does not support either party in the conflict. This
person is called the mediator, and they help the parties communicate.

A mediator
- ensures that communication between the parties is fair and honest.
- not a judge or an arbitrator and cannot take the side of either party, give
legal advice, or provide counselling.
- can assist by clarifying issues, identifying concerns, and helping parties
understand each other’s interests.
- can assist the parties in reaching an agreement between them but will not
force the parties into a solution during mediation. Mediation takes place in
private and the decisions made are private.

HOW MEDIATION IS DONE?

- In private and the decisions made are private.

- can take place in person where parties meet face-to-face for discussions.
- Or, the parties may be placed at separate locations where the mediator
communicates information between parties.
- After mediation, the parties can sign a Memorandum of Agreement (MOA).
A MOA is a cooperative agreement written between the parties to obey the
agreed terms and conditions. The mediator writes the MOA which outlines
details of the solutions reached by the parties. The purpose of the MOA is
to have a written understanding of the agreement between the parties.
Each party should have their lawyer to review the MOA.

TEN COMMONLY ACCEPTED PRINCIPLES IN MEDIATION

1. Conflict of interest (neutral person)

2. Competence/professional role boundaries (trained)
3. Impartiality
4. Voluntariness
5. Confidentiality
6. Do no harm
7. Self-determination
8. Informed consent
9. Duties to third parties
10. honesty

3. Arbitration is a process where a neutral third party makes a decision. The

decision-makers in arbitration are called arbitrators. There can be one arbitrator or
multiple.

FIRST STEP – SUBMISSION – Referring a dispute to an arbitrator

SECOND STEP – HEARING – evidence and arguments are presented
THIRD STEP – JUDGMENT – decision of the arbitrator
Arbitral decisions are sometimes called Awards. Arbitral awards are generally final
and compulsory. An award may be filed in court and enforced as if it were a court
judgment. It can often take a long time to receive an arbitration award. Arbitration is
commonly in commercial disputes, consumer and employment matters, family
disputes, or insurance claim disputes. Arbitration has many advantages over court
hearings and litigation. For example, arbitration can be faster, more flexible, and less
argumentative, intimidating, and expensive.

GENERAL PRINCIPLES OF ARBITRATION

- The objective is to obtain a fair resolution of disputes by an impartial third party

without unnecessary expense or delay.
- parties should be free to agree how their disputes are resolved, subject only to
such safeguards as are necessary in the public interest.
- courts should not interfere. (no agreement was reached)

4. RECONCILIATION – A method of facilitating frank engagements between minority

communities, police and other authorities that allow them to address historical
tensions, grievances, and misconceptions, and reset relationships

PRINCIPLES OF RECONCILIATION

1. The UN Declaration on the Rights of IPs is the framework for reconciliation at all levels
and across all sectors of Canadian Society.
2. First Nations, Inuit, and Metis peoples, as the original peoples of this country and as self-
determining peoples, have Treaty, constitutional, and human rights must be recognized and
respected.
3. A process of healing relationships that requires public truth sharing, apology, and
commemoration that acknowledge and redress past harms.
4. Requires constructive action on addressing the ongoing legacies of colonialism that have
has destructive impacts on Aboriginal peoples’ education, cultures and languages, health,
child welfare, the administration of justice, and economic opportunities and prosperity.
5. Must create a more equitable and inclusive society by closing the gaps in social, health,
and economic outcomes that exists between Aboriginal and Non-Aboriginal Canadians.
6. The perspectives and understandings of Aboriginal Elders and Traditional Knowledge
Keepers of the ethics, concepts, and practices of reconciliation are vital to long-term
reconciliation.

TYPES OF ARBITRATION
1. Domestic arbitration - is when the parties had agreed to resolve any disputes that arise in
the Philippines. Republic Act No. 876 “The Arbitration Law of 1953” AN ACT TO
AUTHORIZE THE MAKING OF ARBITRATION AND SUBMISSION AGREEMENTS, TO
PROVIDE FOR THE APPOINTMENT OF ARBITRATORS AND THE PROCEDURE FOR
ARBITRATION IN CIVIL CONTROVERSIES, AND FOR OTHER PURPOSES.
2. International Arbitration – Between sovereign states that are not settled by diplomatic
negotiation or conciliation are often referred, by agreement of both parties, to the decision of
a third disinterested party, who arbitrates the dispute with binding force upon the disputant
parties.
3. International Commercial Arbitration - According to Section 2(1)(f), international
commercial arbitration can be understood as arbitration that takes place because of a
dispute arising from a commercial contract where either one of the parties resides in a
foreign country or is a foreign national; or the core management committee of an
association, company or a body of individuals is controlled by foreign individuals.
4. Ad-hoc Arbitration - Ad-hoc arbitration refers to when parties with mutual consent opt for
arbitration to resolve the dispute.
5. Institutional Arbitration - In Institutional Arbitration, the parties are free to choose a
particular arbitral institution in the arbitration agreement itself. The institution’s governing
body or the parties can appoint one or more arbitrators from a panel of arbitrators that had
been previously agreed upon. Part I of the Act gives parties the freedom to appoint an
arbitrator to deal with a specific issue.