DISPUTE-RESOLUTION-AND-CRISIS.docx

**[DISPUTE RESOLUTION AND CRISIS / INCIDENT MANAGEMENT]** **Negotiation** - to communicate **on a matter of disagreement** between **significant parties**, with a view, to first **listen** to the **other** party's perspective and concern, and then attempt to arrive at a resolution agreed by consens...

**[DISPUTE RESOLUTION AND CRISIS / INCIDENT MANAGEMENT]** **Negotiation** - to communicate **on a matter of disagreement** between **significant parties**, with a view, to first **listen** to the **other** party's perspective and concern, and then attempt to arrive at a resolution agreed by consensus. A part of Crisis/ Incident Management that tends to resolve or resolute a situation using **peaceful activities** or means on both parties. 1.1. Negotiation is a process in which two or more persons, groups or entities with conflicting interests voluntarily engage in a dialogue or discussion in order to arrive at an agreement that will benefit all the parties concerned; 1.2. Negotiation is not about winning an argument in order to get what you want. It is about working with the other party or parties so that everyone gets what they want; and 1.3. The key word in any negotiation is compromise. This means that those concerned must be willing to concede to each other's request or demands, to give in and to give up certain things to come up with an agreement agreed by consensus. **Critical Points to Remember in Negotiation** 2.1. The goal of negotiation is to reach an agreement that will benefit the concerned individual/groups; 2.2. A good negotiation fosters stronger working relationship between people or groups and promotes mutual understanding among the concerned individuals/groups, especially after reaching an agreement; 2.3. All negotiators must be willing to work with those who have conflicting interests. They must be willing to compromise or exchange for value in order for the negotiation to be a success; 2.4 A negotiation can only be possible when both parties acknowledge the legitimacy of each other's conflicting viewpoints and are willing to work out a solution or agreement in order to arrive at a win-win situation; 2.5. All negotiators should learn how to give and take in order to achieve their desired outcomes and to find lasting solutions; 2.6. A good negotiation ends with all players winning or gaining something; 2.7. Negotiation involves an exchange of ideas between individuals. Its success depends on the participants' understanding of human nature and the ability to empathize with and anticipate each other's needs; 2.8. Every negotiator must have a high stress threshold and knowledge of human psychology. He/She must have an open mind that will allow him/her to change his/her appraisal of a situation whenever necessary; 2.9..It is a must that before entering any negotiation, the negotiator must have the background information vital to negotiating with the concerned parties; 2.10. All options must be weighed before agreeing to enter into negotiation; 2.11. All negotiators must have the determination to take calculated risks to avoid manipulation by the other party; 2.12. When negotiating as a team, always get the commitment of every team member before entering the meeting. Team members must be involved in every action 2.13. In all negotiations, always look beyond what the other party is openly demanding. Oftentimes, their real needs and wants are hidden behind their words and actions; 2.14. All lines of communication between parties must be open; 2.15. Maintain a positive attitude in cases when the negotiation did not work. Reevaluate your choices and pursue another path; and 2.16. Negotiators must be alert and always ready to spot and resolve tactics such as deadline and deadlock pressure, as well as lingering concerns and other potential barriers to the successful execution of a negotiated agreement. If left unattended, these could lead to a breakdown of plans to resolute. **REPUBLIC ACT NO. 9285** AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION, AND FOR OTHER PURPOSES Sec. 1. Title. - This act shall be known as the \"Alternative Dispute Resolution Act of 2004.\" Sec. 2. Declaration of Policy. - it is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets. As such, the State shall provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases. Likewise, the State shall enlist active private sector participation in the settlement of disputes through ADR. This Act shall be without prejudice to the adoption by the Supreme Court of any ADR system, such as mediation, conciliation, arbitration, or any combination thereof as a means of achieving speedy and efficient means of resolving cases pending before all courts in the Philippines which shall be governed by such rules as the Supreme Court may approve from time to time. Sec. 3. Definition of Terms. - For purposes of this Act, the term: \(a) \"Alternative Dispute Resolution System\" means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in this Act, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof; \(d) 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 (RA 9285), to resolve a dispute by rendering an award; \(e) \"Arbitrator\" means the person appointed to render an award, alone or with others, in a dispute that is the subject of an arbitration agreement; \(f) \"Award\" means any partial or final decision by an arbitrator in resolving the issue in a controversy; \(g) \"Commercial Arbitration\" An arbitration is \"commercial" if it covers matter arising from all relationships of a commercial nature, whether contractual or not; \(h) \"Confidential information\" means any information, relative to the subject of mediation or arbitration, expressly intended by the source not to be disclosed, or obtained under circumstances that would create a reasonable expectation on behalf of the source that the information shall not be disclosed. It shall include (1) communication, oral or written, made in a dispute resolution proceedings, including any memoranda, notes or work product of the neutral party or non-party participant, as defined in this Act; \(2) an oral or written statement made or which occurs during mediation or for purposes of considering, conducting, participating, initiating, continuing of reconvening mediation or retaining a mediator; and \(3) pleadings, motions manifestations, witness statements, reports filed or submitted in an arbitration or for expert evaluation; \(k) \"Court\" as referred to in Article 6 of the Model Law shall mean a Regional Trial Court; \(l) \"Court-Annexed Mediation\" means any mediation process conducted under the auspices of the court, after such court has acquired jurisdiction of the dispute; \(m) \"Court-Referred Mediation\" means mediation ordered by a court to be conducted in accordance with the Agreement of the Parties when as action is prematurely commenced in violation of such agreement; \(n) \"Early Neutral Evaluation\" means an ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute; \(o) \"Government Agency\" means any government entity, office or officer, other than a court, that is vested by law with quasi-judicial power to resolve or adjudicate dispute involving the government, its agencies and instrumentalities, or private persons; \(q) \"Mediation\" means 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. \(r) \"Mediator\" means a person who conducts mediation; own free acts to settle controversy \(s) \"Mediation Party\" means a person who participates in a mediation and whose consent is necessary to resolve the dispute; \(t) \"Mediation-Arbitration\" or Med-Arb is a step dispute resolution process involving both mediation and arbitration; \(u) \"Mini-Trial\" 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; Sec. 5. Liability of ADR Provider and Practitioner. - The ADR providers and practitioners shall have the same civil liability for the Acts done in the performance of then duties as that of public officers as provided in Section 38 (1), Chapter 9, Book of the Administrative Code of 1987. Sec. 6. Exception to the Application of this Act. - The provisions of this Act shall not apply to resolution or settlement of the following: \(a) labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of the Philippines, as amended and its Implementing Rules and Regulations; \(b) the civil status of persons; (c) the validity of a marriage; \(d) any ground for legal separation; (e) the jurisdiction of courts; \(f) future legitime; (g) criminal liability; and \(h) those which by law cannot be compromised **[Chapter 2 - Mediation]** Sec. 7. Scope. - The provisions of this Chapter shall cover voluntary mediation, whether ad hoc or institutional, other than court-annexed. The term \"mediation\' shall include conciliation. Sec. 8. Application and Interpretation. - In applying construing the provisions of this Chapter, consideration must be given to the need to promote candor or parties and mediators through confidentiality of the mediation process, the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with the principles of integrity of determination by the parties, and the policy that the decision-making authority in the mediation process rests with the parties.\. Sec. 9. Confidentiality of Information. - Information obtained through mediation proceedings shall be subject to the following principles and guidelines: \(a) Information obtained through mediation shall be privileged and confidential. \(b) A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication. \(c) Confidential Information shall not be subject to discovery and shall be inadmissible if any adversarial proceeding, whether judicial or quasi-judicial, However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation. \(d) In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: \(1) the parties to the dispute; \(2) the mediator or mediators; \(3) the counsel for the parties; \(4) the nonparty participants; \(5) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and \(6) any other person who obtains or possesses confidential information by reason of his/her profession. Sec. 13. Mediator\'s Disclosure and Conflict of Interest. - The mediation shall be guided by the following operative principles: \(a) Before accepting a mediation, an individual who is requested to serve as a mediator shall: \(1) make an inquiry that is reasonable under the circumstances to determinate whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation; and \(2) disclosure to the mediation parties any such fact known or learned as soon as is practical before accepting a mediation. \(b) If a mediation learns any fact described in paragraph (a) (1) of this section after accepting a mediation, the mediator shall disclose it as soon as practicable. At the request of a mediation party, an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute. This 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. A.M. No. 19-10-SC or the Guidelines for the Conduct of Court-Annexed Mediation ("CAM") and Judicial Dispute Resolution ("JDR") in Civil Cases ("Guidelines") dated 09 February 2021 **Purpose of CAM and ADR** CAM and JDR 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 CAM and JDR 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). Under Section 1 of the Guidelines, it is *mandatory *to refer the following civil cases to CAM 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. 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; 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; The following civil cases *may *be referred to JDR: - all civil cases and settlement of estate, testate and intestate; - all cases of forcible entry and unlawful detainer; - all civil cases involving title to, or possession of, real property or an interest therein; and - habeas corpus cases decided by the first level court in the absence of the any Regional Trial Court Judge. - All cases referred after CAM as determined by the Presiding Judge. ***[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). 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). The new Guidelines took effect on 01 March 2021 following its publication in two (2) newspapers of general circulation. **Restorative Justice and Retributive Justice** **Restorative Justice** is a process through which remorseful offenders accept responsibility for their misconduct to those injured and the community that, in response allows the reintegration of the offender into the said community. It creates 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, re-empowerment, and reassurance. Restorative Process means any process in which the victim, the offender, and/or any individual or community members affected by a crime actively participate together in the resolution of matters resulting from the crime or offence, often with the help of a fair and impartial third party. Objectives: To proactively involve the community to support and assist in the rehabilitation of victims and offenders; To attend to the needs of the victims, survivors and other persons impacted by the crime as vital participating stakeholders in the criminal justice system, rather than mere objects or passive recipients of service or intervention that may be unwanted, inappropriate or ineffective; To reintegrate offenders to the social mainstream and to encourage them to assume active responsibility for the injuries inflicted on the victims and the community; To ultimately heal the effects of the crime or wrongdoing suffered by the respective stakeholders; and To prevent further commission of crime and delinquency. **Retributive Justice -** Retribution has the end goal of maintaining moral justice. Retribution theory holds that punishing wrongdoers is a necessary moral good for not only the victim and the community, but also the wrongdoer themselves. Retributive justice is equal punishment for equal crime. An example of this is the common punishment for murderers being capital punishment (sentenced to death). In the case of financial matters, fines can be used as a form of retribution. Latin term, "I pay back" The 3 core principles of Retribution are: Those who commit certain crimes morally deserve to suffer a proportionate punishment. This punishment is intrinsically morally good if a legitimate punisher gives them the punishment they deserve.and It is morally wrong and unallowable to intentionally punish the innocent or inflict punishment that is disproportionate to wrongdoers. https://d2dzik4ii1e1u6.cloudfront.net/images/lexology/static/dfbf6dab-6be5-4649-af09-adb7054a42a3.JPG