Dispute Resolution and Crisis Management PDF

Dispute Resolution and Crisis/Incident s Management COURSE INTRODUCTION This course deals with the study of the process of dealing and resolving conflicts/disputes resolution and crises management. It includes the art of intervention through mediation and reconciliation of disagreements...

Dispute Resolution and Crisis/Incident s Management COURSE INTRODUCTION This course deals with the study of the process of dealing and resolving conflicts/disputes resolution and crises management. It includes the art of intervention through mediation and reconciliation of disagreements between stakeholder’s agencies. Likewise, the course includes handling of crises that the criminal justice personnel are commonly encountered. SEGMENT I: CONFLICT WHAT IS CONFLICT? Conflict refers to a natural disagreement or struggle between people which may be physical, or between conflicting ideas. It can either be within one person, or they can involve several people or groups. It exists when they have incompatible goals and one or more believe that the behavior of the other prevents them from their own goal achievement. Conflict” comes from the Latin word “conflingere” which means to come together for a battle. WHAT ARE CONFLICT THEORIES? Conflict theory states that tensions and conflicts arise when resources, status, and power are unevenly distributed between groups in society and that these conflicts become the engine for social change. Many others have drawn on conflict theory to develop other types of theory within the social sciences, including the following: 1.Feminist theory; 2.Class conflict theory; 3.Conflict Culture theory;  WHAT IS CONFLICT RESOLUTION? It is conceptualized as the methods and processes involved in facilitating the peaceful ending of conflict and retribution. The term conflict resolution may also be used interchangeably with dispute resolution where the ARBITRATION and LITIGATION process are critically involved.  Arbitration vs. Litigation Litigation Arbitration means taking a dispute on the other hand, is a to court. Both sides private process in which present their case before a both parties agree that an judge or jury, who will then arbitrator (a neutral third render a decision. party) will render a binding decision. Arbitration Process vs. Litigation Process Litigation Arbitration It refers to an action of It is also known as the resolving a dispute by Private Dispute filing or answering a Resolution Process - is a complaint through the procedure in which a public court system. dispute is submitted, by Typically settled by agreement of the parties agreement between parties, to one or more but may also be heard and arbitrators. decided by a jury or judge in court.  WHAT ARE THE CONFLICT RESOLUTION STRATEGIES? Developed by Kenneth Thomas and Ralph Kilmann (2015); Also known as Thomas-Kilmann Instrument or “TKI Conflict Strategies”; Use to handle conflicts (Avoiding-Competing- Accommodating-Collaborating-Compromising); WHAT ARE THE CONFLICT RESOLUTION STRATEGIES? In such conflict situations, an individual’s behavior can be described along two dimensions: Assertiveness (the extent to which the person attempts to satisfy his own concerns); and Cooperativeness (the extent to which the person attempts to satisfy the other person’s concerns).  WHAT ARE THE CONFLICT RESOLUTION STRATEGIES? 1. Avoiding (U & U) Someone who uses a strategy of "avoiding" mostly tries to ignore or sidestep the conflict, hoping it will resolve itself.  WHAT ARE THE CONFLICT RESOLUTION STRATEGIES? 2. Accommodating (U & C) 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.  WHAT ARE THE CONFLICT RESOLUTION STRATEGIES? 3. Compromising (Moderate A & C) The strategy of "compromising" involves finding an acceptable resolution that will partly, but not entirely, satisfy the concerns of all parties involved.  WHAT ARE THE CONFLICT RESOLUTION STRATEGIES? 4. Competing (A & U) Someone who uses the conflict resolution strategy of "competing" tries to satisfy their own desires at the expense of the other parties involved. (Opposite of ACCOMMODATING)  WHAT ARE THE CONFLICT RESOLUTION STRATEGIES? 5. Collaborating (A & C) Using "collaborating" involves finding a solution that entirely satisfies the concerns of all involved parties. (complete opposite of AVOIDING)  Note: Each of the conflict resolution strategies above involves different degrees of assertiveness and cooperativeness. For example, while accommodating includes a high degree of cooperativeness and a low degree of assertiveness, competing consists of a low degree of cooperativeness and a high degree of assertiveness Activity # 1 (Group Recitation) How do you handle crisis/conflict in your daily life? Cite specific situation. To be continued… Thank you. SEGMENT II: ALTERNATIVE DISPUTE RESOLUTION (ADR)  WHAT IS REPUBLIC ACT NO. 9285? This Act is known as the "Alternative Dispute Resolution Act of 2004." It is entitled, “An Act to Institutionalize the Use of an Alternative Dispute Resolution System in the Philippines and to Establish the Office for Alternative Dispute Resolution and For Other Purposes”. What is Alternative Dispute Resolution? Alternative Dispute Resolution is 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, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, or any combination thereof.  WHAT IS THE POLICY OF THE STATE REGARDING ALTERNATIVE DISPUTE RESOLUTION (ADR)? 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. WHAT IS ARBITRATION? 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 RA 9285, resolve a dispute by rendering an award. (Sec. 3, par. d, RA 9285) Note: Award means any partial or final decision by an arbitrator in resolving the issue or controversy. WHAT IS MEDIATION? 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. (Sec. 3, par. q, RA 9285) WHAT IS 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)  How arbitration, mediation and conciliation are different from each other? ARBITRATION MEDIATION CONCILIATION Arbitration is a process In mediation, the mediator It involves the assistance of where the parties submit generally sets out a neutral third party who their case to a neutral third alternatives for the parties plays an advisory role in party who on the basis of to reach out an agreement. reaching an agreement. discussion determine the The settlement is made dispute and comes to a by the parties themselves solution. rather than a third party. In addition, the basic motive of mediation is to provide opportunities to parties to negotiate and come to a final solution catering the needs of both sides. WHAT IS ADR PROVIDER? ADR Provider means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar functions in any Alternative Dispute Resolution system. This is without prejudice to the rights of the parties to choose nonaccredited individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute. (Sec. 3, par. b, RA 9285) WHAT IS THE LIABILITY OF ADR PROVIDERS/PRACTITIONERS? The ADR provides /practitioners shall have the same civil liability for acts done in the performance of their official duties as that of public officers as provided in Section 38 (1), Chapter 9, Book 1 of the Administrative Code of 1987, upon a clear showing of bad faith, malice or gross negligence. (Article 1.5, IRR, RA 9285) What are the cases wherein Republic Act No. 9285 does not apply? The provisions of RA 9285 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.Criminal liability;  THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION The Office for Alternative Dispute Resolution (OADR) is as an agency attached to the Department of Justice. It shall have a Secretariat and shall be headed by an Executive Director, who shall be appointed by the President of the Philippines, taking into consideration the recommendation of the Secretary of Justice. (Article 2.1., IRR, RA 9285)  Powers of the OADR The OADR shall have the following powers: To act as appointing authority of mediators and arbitrators when the parties agree in writing that it shall be empowered to do so; To establish training programs for ADR providers/practitioners, both in the public and private sectors; and to undertake periodic and continuing training programs for arbitration and mediation and charge fees on participants. It may do so in conjunction with or in cooperation with the IBP, private ADR organizations, and local and foreign government offices and agencies and international organization.  Powers of the OADR To certify those who have successfully completed the regular professional training programs provided by the OADR; To exercise such other powers as may be necessary and proper to carry into effect the provisions of the ADR Act. (Art. 2.2., IRR, RA 9285)  DIVISIONS OF OADR The OADR shall have the following staff and service divisions, among others: Secretariat – shall provide necessary support and discharge such other functions and duties as may be directed by the Executive Director. Public Information and Promotion Division – shall be charged with the dissemination of information, the promotion of the importance and public acceptance of mediation, conciliation, arbitration or any combination thereof and other ADR forms as a means of achieving speedy and efficient means of resolving all disputes and to help in the promotion, development and expansion of the use of ADR.  DIVISIONS OF OADR Training Division – shall be charged with the formulation of effective standards for the training of ADR practitioners; conduct of training in accordance with such standards; issuance of certifications of training to ADR practitioners and ADR service providers who have undergone the professional training provided by the OADR; and the coordination of the development, implementation, monitoring and evaluation of government and private sector ADR programs. Records and Library Division – shall be charged with the establishment and maintenance of a central repository of ADR laws, rules and regulations, jurisprudence, books, articles, and other information about ADR in the Philippines and elsewhere. (Art. 2.4., IRR, RA 9285) 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 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 aid in the mediation. A lawyer of this right shall be made in writing by the party waiving it. (Sec. 14, RA 9285) WHEN 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) CONDUCT OF MEDIATION The mediation process shall, in general, consists of the following stages: 1.opening statement of the mediator 2.individual narration by the parties; 3.exchange by the parties; 4.summary of issues; 5.generation and evaluation of options; and 6.closure MEDIATION SETTING The parties are free to agree on the place of mediation. Failing such agreement, the place of mediation shall be any place convenient and appropriate to all parties. (Article 3.18., IRR, RA 9285)