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Dispute Resolution and Crisis Management

This document provides an overview of a self-paced learning module on dispute resolution and crisis management for criminology students at the Cabarroguis Campus of Quirino State University. The module defines conflict, explains conflict theory, and identifies five conflict resolution strategies: avoiding, competing, accommodating, collaborating, and compromising. The module is intended to help students understand the meaning of conflict, analyze conflicts using conflict theory, and determine appropriate conflict resolution approaches.

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Ronalyn E. Ellazar

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0% found this document useful (0 votes)

148 views69 pages

Dispute Resolution and Crisis Management

Uploaded by

Ronalyn E. Ellazar

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as PDF, TXT or read online on Scribd

You are on page 1/ 69

CABARROGUIS CAMPUS

Cabarroguis, 3400 Quirino www.qsu.edu.ph

[email protected]
BACHELOR OF SCIENCE IN CRIMINOLOGY 0917-126-9160

DISPUTE
RESOLUTION
AND
CRISIS
MANAGEMENT
A SELF-PACED LEARNING MODULE

A.Y. 2022-2023

DEUS GLEENA C. PUMARAS, RCrim, JD

Subject Instructor

VISION MISSION
The leading center for academic and technological Develop competent and morally upright professionals and
excellence and prime catalyst for a progressive and generate appropriate knowledge and technologies to meet
sustainable Quirino Province and Southern Cagayan the needs of Quirino Province and Southern Cagayan
Valley. Valley.
CABARROGUIS CAMPUS
Cabarroguis, 3400 Quirino www.qsu.edu.ph
[email protected]
BACHELOR OF SCIENCE IN CRIMINOLOGY 0917-126-9160

MODULE 1 TOPIC : CONFLICT

Objectives:
At the end of this topic, the students are expected to be able to:

1. Explain the meaning of conflict.

2. Explain the conflict theory
3. Identify the conflict resolution strategies.

CONFLICT

WHAT IS CONFLICT?

A Latin word “Conflingere” which means to come together for a battle.

A conflict is an activity which takes place when conscious beings

(individuals or groups) wish to carry out mutually inconsistent acts
concerning their wants, needs or obligations.

Conflict may also refer 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 THEORY

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. In this context, power can be
understood as control of material resources and accumulated wealth, control
of politics and the institutions that make up society, and one’s social status
relative to others (determined not just by class but by race, gender, sexuality,
culture and religion, among other things).

Conflict theory originated in the work of Karl Marx, who focused on the causes
and consequences of class conflict between the bourgeoisie (the owners of the
means of production and the capitalists) and the proletariat (the working class
and the poor). Many social theorists have built on Marx’s conflict theory to
bolster it, grow it, and refine it over the years. Many others have drawn on
conflict theory to develop other types of theory within the social sciences,
including the following:

a. Feminist theory;
b. Critical race theory;
c. Postmodem theory and postcolonial theory;

d. Queer theory;
e. Post-structural theory; and
f. Theories of globalization and world systems.

CONFLICT RESOLUTION STRATEGIES

Kenneth Thomas and Ralph Kilmann (2015) developed five conflict

resolution strategies. Thomas-Kilmann instrument or more generally known as
the TKI Conflict Strategies state that people use to handle conflict, including
avoiding, defeating, compromising, accommodating and collaborating.

The Thomas-Kilmann Instrument is designed to measure a person’s behavior

in conflict situations. “Conflict Situations” are those in which the concerns of
two people appear to be incompatible.

In such conflict situations, we can describe an individual’s behavior along

two dimensions:

1. Assertiveness – refers to the extent to which the person attempts to

satisfy his own concerns.

2. Comparativeness – refers to the extent to which the person attempts

to satisfy the other person’s concerns.

These two underlying dimensions of human behavior (Assertiveness and

cooperativeness) can then be used to define five different modes for responding
to conflict situations, to wit:

a. Competing is an assertive and uncooperative- an individual pursues his

won concerns at the other person’s expense. This is power-oriented mode
which you use whatever power seems appropriate to win your own position-
your ability to argue, your rank, or economic sanctions. Competing means
standing up for your rights, defending a position which you believe is correct,
or simply trying to win.

b. Accommodating is unassertive and cooperative- the complete

opposite of competing. When accommodating, the individual neglects his own
concerns of the other person; there is an element of self-sacrifice in this mode.
Accommodating might take the form of selfless generosity or charity, obeying
another person’s order when you would prefer not to, or yielding to another’s
point of view.

c. Avoiding is unassertive and uncooperative – the person neither

pursues his own concerns nor those of the other individual/ thus he does not
deal with the conflict. Avoiding might take the form of diplomatically
sidestepping an issue, postponing an issue until a better time, or simply
withdrawing from a threatening situation.

d. Collaborating is both assertive and cooperative- the complete opposite of

avoiding. Collaborating involves an attempt to work with others to find some
solution that fully satisfies their concerns. It means digging into an issue to
pinpoint the underlying needs and wants of the two individuals. Collaborating
between two persons might take the form of exploring a disagreement to learn
from each other’s insights or trying to find a creative solution to an
interpersonal problem.

e. Compromising is moderate in both assertiveness and

cooperativeness. The objective is to find some expedient, mutually acceptable
solution that partially satisfies both parties. It falls intermediate between
competing and accommodating. Compromising gives up more than
competing but less than accommodating. Likewise, it addresses an issue more
directly than avoiding, but does not explore it in as much depth as
collaborating. In some situation, compromising might mean splitting the
difference between the two positions, exchanging concessions or seeking a
quick middle-ground solution.

MODULE II. DISPUTE RESOLUTION

OBJECTIVES
At the end of this module, students are expected to:
1. Define alternative dispute resolution.

2. Identify and distinguish different modes of dispute resolution.

The Alternative Dispute Resolution

Act of 2004

The Alternative Dispute Resolution Act

of 2004 or Republic Act No. 9285 was
approved on April 2, 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, early neutral evaluation, mini-trial or any
combination thereof.

Purpose of Alternative Dispute Resolution

It is an important means and efficient tool to achieve speedy and impartial

justice and alternative procedure for the resolution of appropriate cases by:

a. Enlisting the active private sector participation in the settlement of

disputes through Alternative Dispute Resolution;

b. Without prejudice to the adoption by the Supreme Court of any

Alternative Dispute Resolution system such as mediation, conciliation,
arbitration or any combination thereof as a 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.

KINDS OF DISPUTE RESOLUTION

1. 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, resolve a dispute by rendering an award.

A substitution, by consent of the parties, of another tribunal or the tribunals

provided by the ordinary processes of law.

Kinds of Arbitration

A. Domestic Arbitration- It is domestic if any of the following components are

within the Philippines-

 Parties’ places of business;

 Place of arbitration;

 Place of performance of a substantial part of the obligation; and

 The subject matter of the dispute is most closely connected.

B. International Arbitration- it is international if the following components

are outside Philippines-

 Parties’ place of business

 Place of arbitration;

 Place of performance of a substantial part of the obligation; or

 The subject matter of the dispute is most closely connected.

C. INTERNATIONAL COMMERCIAL ARBITRATION (ICA) - it covers matters

arising from all relationships of a commercial nature, whether contractual or
not.

 Foreign ICA. If its seat is outside the Philippines even if the place of
arbitration is in the Philippines;

 Philippine ICA. If its seat is in the Philippines even if the place of

arbitration is outside the Philippines.

2. 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.

3. Conciliation- is an alternative dispute resolution (ADR) process

whereby a third party (the conciliator) is appointed as a neutral and unbiased

person to help parties involved in a dispute to achieve a settlement by steering

negotiations towards an amicable conclusion.

4. 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.

5. Early Neutral Evaluation - a 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.

What are examples of combination of different modes of Alternative Dispute

Resolution?

Mediation-arbitration or Med-Arb - is a step dispute resolution process

involving both mediation and arbitration.

Can a person act simultaneously as arbitrator and mediator in one and the
same dispute?

No arbitrator shall act as a mediator in any proceeding in which he is acting

as arbitrator; and all negotiations towards settlement of the dispute must take
place without the presence of that arbitrator. Conversely, no mediator shall
act as arbitrator in any proceeding in which he acted as mediator.

MEDIATION

What is Mediation?

It 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.

Two-types of Court Mediation

Court Mediation are classified into two:

a. Court-annexed mediation - refers to any mediation process conducted

under the auspices of the court, after such court has acquired jurisdiction of

the dispute. This is a type of mediation which is voluntary in nature. The

following are cases which may be referred to court-annexed mediation, to wit:

1. All civil cases, except those which by law may not be compromised (Article
2035, New Civil Code);

2. Special proceedings for the settlement of estates;

3. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code;

4. The civil aspect of criminal cases where the imposable penalty does not
exceed six years imprisonment and the offended party is a private person; and

5. The civil aspect of theft (not qualified theft), estafa (not syndicated or large
scale estafa), and libel.

b. Court-referred mediation - refers to 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.

What is Mediation-Arbitration?

It is a two-step dispute resolution process involving both mediation and

arbitration.

Principles and guidelines of information obtained through mediation

proceedings

a. Information obtained through mediation shall be privileged and

confidential.

b. A party, 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 extrajudicial.
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. Mediators who is found to have failed to act impartially is being

protected by the law.

e. A mediator may not be called to testify to provide information gathered

in mediation.

Confidentiality means secrecy, the state of having the dissemination of certain

information restricted. The guidelines on confidentiality of information
obtained in mediation proceedings are considered privileged communication.

Privileged communication is a doctrine that utterances made in the course of

judicial proceedings, including all kinds of pleadings, petitions and motions
belong to the class of communications that are absolutely privileged, if the
same are relevant, pertinent or material to the cause at hand or subject of
inquiry.

The following persons involved in mediation may not be compelled to disclose

confidential information obtained during mediation:

a. The parties to the dispute;

b. The mediator or mediators;

c. The counsel for the parties;

d. The nonparty participants;

e. Any person hired or engaged in connection with the mediation as secretary,

stenographer, clerk or assistant; and

f. Any other person who obtains or possesses confidential information by

reason of his / her profession.

A privilege arising from the confidentiality of information may be waived in

record or orally during a proceeding by the mediator and the mediation
parties and by a nonparty participant if the information is provided by such
nonparty participant.

Waiver means the voluntary relinquishment or abandonment , express or

implied of a right.

Generally, privilege against disclosure is granted to the persons involved in

the mediation. However, there is no privilege against disclosure if :

A. Mediation communication is:

1. In an agreement evidenced by a record authenticated by all parties to the

agreement;

2. Available to public or that is made during a session of a mediation which is

open, or is required by law to be open, to the public;

3. A threat or statement of a plan to inflict bodily injury or commit a crime of

violence;

4. Internationally used to plan a crime, attempt to commit, or commit a crime,

or conceal an on going crime or criminal activity;

5. Sought or offered to prove or disprove abuse, neglect, abandonment or

exploitation in a proceeding in which a public agency is protecting the interest
of an individual protected by law, note, however, that this do not apply where
a child protection matter is referred.

6. Sought or offered to prove or disprove a claim or complaint of professional

misconduct or malpractice filed against mediator in a proceeding; or

7. Sought or offered to prove or disprove a claim of complaint of professional

misconduct of malpractice filed against a party, nonparty participant or
representative of a party based on conduct occurring during a mediation.

8. In a court or administrative agency, a court proceeding involving a crime or

felony; or a proceeding to prove a claim or defense that under the law is
sufficient to reform or avoid a liability on a contract arising out of the
mediation.

The privileges mentioned can be used as shield against the law itself which is
against public policy.

MEDIATOR REPORTS

Generally, a mediator may not make a report, assessment, evaluation,

recommendation, finding, or other communication regarding a mediation to
court or agency or other authority that make a ruling on a dispute that is the
subject of a mediation. The following are the exceptions:

a. Where the mediation occurred or has terminated, or where a settlement

was reached;

b. As permitted to be disclosed by the law.

MEDIATOR’S DISCLOSURE AND CONFLICT OF INTEREST

At the request of a mediation party, an individual who is requested to serve as

mediator shall disclose his qualifications to mediate a dispute. But before
accepting a mediation, an individual who is requested to be a mediator shall:

a. Make an inquiry to determine whether there are 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;

b. Disclosure to the mediation parties any fact known or learned as soon

as is practical before accepting a mediation.

May a lawyer participate in mediation?

Yes. By designation of a party. A lawyer or any other person may participate

to provide assistance in mediation. Note also that a waiver of legal
representation may be rescinded at any time.

To rescind means to abrogate, annul, avoid or cancel a contract.

Place of mediation

The parties are free to agree on the place of mediation. Failure to agree, the
place of mediation shall be any place convenient and appropriate to all parties.

May parties agree to refer one or more or all issues arising in a dispute to other
forms of ADR?

Yes. Parties may agree to refer one or more or all issues arising in a dispute or
during its pendency to other forms of Alternative Dispute Resolution such as
but not limited to (a) the evaluation of a third person or (b) a mini-trial, (c)
mediation-arbitration, or a combination thereof.

What will happen to mediated settlement agreement?

If the parties so desire, they may deposit the mediated settlement agreement
with the appropriate Clerk of the Regional Trial Court of the place where one
of the parties resides. Where there is need to enforce the settlement agreement,
a petition may be filed by any of the parties with the same court, in which
case, the court shall proceed summarily to hear the petition.

Mediation Fee

In the Regional Trial Courts and the First-Level Courts, the Clerks of Court
shall collect the amount of FIVE HUNDRED PESOS (P500.00) upon the filing
of the following:

1. Complaint or an Answer with a mediatable permissive counterclaim or

cross-claim, complaint-in-intervention, third-party complaint, fourth- party
complaint, etc., in civil cases, a Petition, an Opposition, and a Creditors’
Claim in Special Proceedings;

2. Complaint/Information for offenses with maximum imposable penalty of

prision correccional in its maximum period or six years imprisonment, except
where the civil liability is reserved or is subject of a separate action;

3. Complaint/Information for estafa, theft, and libel cases, except where the
civil liability is reserved or is subject of a separate action;

4. Complaint/Information for Quasi-Offenses under Title 14 of the Revised

Penal Code;

5. Intellectual Property cases;

6. Commercial or corporate cases; and

7. Environmental cases.

The Clerks of Court of the First Level Courts shall collect the amount of FIVE
HUNDRED PESOS (P500.00) upon the filing of a Notice of Appeal with the
Regional Trial Court.

The Clerks of Court of the Regional Trial Court shall collect the amount of
ONE THOUSAND PESOS (P1,000.00) upon the filing of a Notice of Appeal with
the Court of Appeals or the Sandiganbayan.

In the Court of Appeals and Court of Tax Appeals, the Clerks of Court shall
collect the amount of ONE THOUSAND PESOS (P1,000.00) upon the filing of a
mediatable case, petition, special civil action, a comment/answer to the
petition or action, and the appellee’s brief. The Clerk of Court of the Court of
Tax Appeals shall also collect the amount of ONE THOUSAND PESOS
(P1,000.00) for the appeal from the decision of a CTA Division to the CTA En
Banc.

The mediation fee is intended as a contribution to promote mediation. It is not

collected for mediation services rendered or to be rendered.

The following are exempted from paying mediation fees:

1. Pauper litigants as determined by the Court. However, despite such

exemption, the court shall provide that the unpaid contribution to the
Mediation Fund shall be considered a lien on any monetary award in a
judgment favorable to the pauper litigant.

2. Accused/accused-appellant.

3. The Republic of the Philippines, its agencies and instrumentalities are

exempt from paying the legal fees provided in the rule. Local Governments
and Government-Owned or Controlled Corporations (GOCC) with or without
independent charters are not exempt from paying such fees. However, all
court actions, criminal or civil, instituted at the instance of the provincial, city
or municipal treasurer or assessor under Sec. 280 of the Local Government
Code of 1991 shall be exempt from the payment of Court and Sheriff’s Fees.

4. Tenant-Farmer, agricultural lessee or tiller, settler or amortizing owner-

cultivator (P.D. No. 946, Sec. 16, June 17, 1976).

5. Indigent Clients of the Public Attorney’s Office (OCA Circular No. 121-
2007, Dec. 11, 2007). Clients of the National Committee on Legal Aid (NCLA)
and of Legal Aide Offices in the Local Chapters of the Integrated Bar of the
Philippines (OCA Circular No. 137-2009, October 7, 2009).

MODULE 3. INTERNATIONAL COMMERCIAL ARBITRATION

OBJECTIVES

After the discussion, students shall:

1. Interpret the Model Law on International Commercial Arbitration.

2. Define commercial arbitration

3. Determine the rules on international commercial arbitration.

INTERNATIONAL COMMERCIAL ARBITRATION

International Commercial Arbitration shall be governed by the Model Law on

International Commercial Arbitration, the “Model Law” adopted by the United
Nations Commission on International Trade Law on June 21, 1985 and
recommended for enactment by General Assembly Resolution No.10/72 on
December 11, 1985.

Note that in interpreting the Model Law, regard shall be had to its
international origin and to the need for uniformity in its interpretation and
resort may be made to the travaux preparatoires and the report of the
Secretary General of the United Nations Commission on International Trade
Law dated March 25, 1985 entitled, “International Commercial Arbitration:
Analytical Commentary on Draft Text identified by reference number A/CN
9/264”.

Model Act defined and distinguished from Model Law

Model Act is statute drafted by the National Conference of Commissioners in

Uniform State Laws and proposed as guidelines for legislation for the states to
borrow from or adapt to suit their individual needs.

WHEN IS AN ARBITRATION CONSIDERED INTERNATIONAL?

An arbitration is international if:

a. The parties to an arbitration agreement have, at the time of the

conclusion of that agreement, their places of business in different States;or

b. One of the following places is situated outside the State in which the
parties have their places of business:

1. The place of arbitration if determined in, or pursuant to, the place of

arbitration;

2. Any place where a substantial part of the obligations of the commercial

relationship is to be performed or the place with which the subject matter of
the dispute is most closely connected.

c. The parties have expressly agreed that the subject matter of the
arbitration agreement relates to more than one country.

COMMERCIAL ARBITRATION

An arbitration is commercial if it 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 transactions:

a) Any trade transaction for the supply or exchange of goods or services;

b) Distribution agreements, construction of works, engineering, licensing,

investment, financing;

c) Banking and insurance;

d) Joint venture and other forms of industrial or business corporation;

e) Carriage of goods or passengers by air, sea, rail or road.

Representation in international arbitration

Representation in international arbitration could be by a lawyer or non-lawyer.

In international arbitration conducted in the Philippines, a party may be
represented by any person of his choice: Provided, that such representative,
unless admitted to the practice of law in the Philippines, shall not be
authorized to appear as counsel in any Philippine Court, or any quasi-judicial
body whether or not such appearance is in relation to the arbitration in which
he appears.

RULE ON CONFIDENTIALITY OF ARBITRATION PROCEEDINGS

Arbitration proceedings are confidential because arbitration is more of an

amicable settlement proceeding rather than a judicial process where
discussions and records are privileged communications. It has to be recorded
for practical reasons. Thus, the arbitration proceedings, including the records,

evidence and the arbitral award shall be considered confidential and shall not
be published, except:

a. With the consent of the parties; or

b. For the limited purpose of disclosing to the court in which the action or
appeal is pending may issue a protective order to prevent or prohibit
disclosure of documents or information containing secret processes,
developments, research and other information where it is shown that the
applicant shall be materially prejudiced by an authorized disclosure thereof.

Court referral to arbitration proceedings

Arbitration proceedings are not mandatory but subject to the will of the
parties to a controversy. Strictly, it is consensual. However, “a court before
which an action is brought in a matter of an arbitration agreement shall, if at
least one party so requests not later than the period of the pre-trial conference,
or upon request of both parties thereafter, refer the parties to an arbitration
unless it finds that the arbitration agreement is null and void, inoperative or
incapable of being performed.

NO REFERRAL OF ARBITRATION ALLOWED

When the arbitration agreement is null and void, inoperative or incapable of

being performed, at the determination of the court, no referral to arbitration is
allowed. For instance, if the subject of the arbitration agreement is prohibited
by law.

Appointing Authority

As used in the Model Law, shall mean the person or institution named in the
arbitration agreement as the appointing authority; or the regular arbitration
institution under whose rules the arbitration is agreed to be conducted.

In arbitration, the “Appointing Authority” is by agreement of the parties.

Composition of Arbitral Tribunal

Generally, the parties are free to determine the number of arbitrators.

However, if parties fail to determine the number, there shall be three. Note
also, no person shall be precluded by reason of his nationality from acting as

arbitrator, unless otherwise agreed by the parties. (UNCITRAL Model Law on

International Commercial Arbitration)

Conduct of Arbitral Proceedings

The parties in an arbitral proceedings shall be treated with equality and each
party shall be given a full opportunity of presenting his case.

Determination of rules of procedure

General rule, the parties are free to agree on the procedure to be followed by
the tribunal in conducting the procedures. Unless the parties fail to agree, the
arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate.

Rules on Place of Arbitration

The parties are free to agree on the place of arbitration. Failing such
agreement, the place of arbitration shall be in Metro Manila, unless the
arbitral tribunal, having regard to the circumstances of the case, including
the convenience of the parties, shall decide on a different place of arbitration.
(Republic Act No. 9285).

Note also that in cases of International Commercial Arbitration, the place of

arbitration provided under the UNCITRAL Model Law on International
Commercial Arbitration are as follows:

a. If a party has more than one place of business, the place of business is
that which has the closest relationship to the arbitration agreement;

b. If a party does not have a place of business, reference is to be made to

his habitual residence.

Power of Arbitral Tribunal to order interim measures

The arbitral tribunal may, at the request of a party, grant interim measures.

What is an interim measure?

An interim measure is any temporary measure, by which at any time prior to

the issuance of the award by which the dispute is finally decided, the arbitral
tribunal orders a party to:

a. Maintain or restore the status quo pending determination of the dispute;

b. Take action that would prevent, or refrain from taking action that is
likely to cause, current or imminent harm or prejudice to the arbitral process
itself;

c. Provide a means of preserving assets out of which a subsequent award

may be satisfied; or

d. Preserve evidence that may be relevant and material to the resolution of

the dispute.

Effect of settlement of parties during arbitral proceedings

If the parties settle their dispute during the arbitral proceedings, the arbitral
tribunal shall terminate the proceedings and, if requested by the parties and
not objected to by the arbitral tribunal, record the settlement in the form of
arbitral award on agreed terms.

MODULE 4. THE ARBITRATION LAW

OBJECTIVES

The students are expected to:

1. Distinguish arbitration from other modes of alternative dispute

resolution.

2. Explain the procedure in an arbitration.

3. Enumerate the qualifications and disqualifications of arbitrators.

THE ARBITRATION LAW

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 law, resolve a dispute by rendering an
award.

Who is an arbitrator?

An arbitrator is a person appointed to render an award, alone or with others,

in a dispute that is the subject of an arbitration agreement.

Submission agreement as distinguished from arbitration

agreement/clause

There is submission agreement when two or more persons or parties submit

to the arbitration of one or more arbitrators any controversy existing between
them at the time of the submission.

On the other hand, it is an arbitration agreement when the parties to any

contract agree to settle by arbitration a controversy thereafter arising between
them.

Formal requisites of a valid arbitration agreement or submission

agreement

A contract to arbitrate a controversy thereafter arising between the parties, as

well as a submission to arbitrate an existing controversy shall be (1) in writing
and (2) subscribed by the party sought to be charged or by his lawful agent.

Domestic arbitration

It shall mean an arbitration that is not international.

Principles in arbitration

a. Principle of separability means that the arbitration clause shall be

treated as an agreement independent of the other terms of the contract of
which it forms part. A decision that the contract is null and void shall not
entail ipso jure the invalidity of the arbitration clause.

b. Principle of competence-competence means that the arbitral

tribunal may initially rule on its own jurisdiction, including any objections
with respect to the existence or validity of the arbitration agreement or any
condition precedent to the filing of a request for arbitration. The arbitral
tribunal shall be accorded the first opportunity or competence to rule on the
issue of whether or not it has the competence or jurisdiction to decide a
dispute submitted to it for decision, including any objection with respect to
the existence or validity of the arbitration agreement.

c. Policy of judicial restraint means where the court is asked to make a

determination of whether the arbitration agreement is null and void,
inoperative or incapable of being performed, under this policy of judicial
restraint, the court must make no more than a prima facie determination of
that issue. The court must suspend the action before it and refer the parties
to the arbitration agreement.

When may a party petition the court for an order directing an arbitration to
proceed?

When there is failure, neglect or refusal of another to perform under an

agreement in writing providing for arbitration, the party may petition the court
to direct the arbitration to proceed.

In such case, the court shall hear the parties and upon being satisfied that
the making of the agreement or such failure to comply therewith is not in
issue, the court shall make an order directing the parties to proceed to

arbitration. If the making of the agreement is the issue, the court shall
summarily hear the issue.

When may the court appoint arbitrators?

The court may appoint arbitrators in the following instances:

a. If the parties are unable to agree upon a single arbitrator;

b. If an arbitrator appointed by the parties is unwilling or unable to serve

and his successor has not been appointed in the manner in which he was
appointed;

c. If the party fails or refuse to name his arbitrator within fifteen days
after the receipt of the demand for arbitration.

d. If the arbitrators appointed by each party or by one party and the

proper Court fails to agree upon or to select the third arbitrator.

Note that arbitrators appointed by the court shall express their acceptance or
refusal to their appointments within seven days from the receipt of their
appointments. In case of declination or failure of the arbitrator to accept their
appointments, the court shall proceed to appoint a substitute.

The court may also select or appoint a person as an additional arbitrator

when the parties submits a written request for its appointment. Such
additional arbitrator must sit with the original arbitrators upon hearing.

Qualifications of Arbitrators

Any person appointed to serve as an arbitrator must be:

a. Of legal age;

b. In full-enjoyment of his civil rights;

c. Must know how to read and right.

Disqualification of arbitrators

No person shall serve as arbitrator if :

a. He is related by blood or marriage within the sixth degree to either

party to the controversy;

b. He has or had financial fiduciary or other interest in the controversy or

cause to be decided or in the result of the proceeding or has any personal bias,
which might prejudice the right of any party to a fair and impartial award.

Powers granted to arbitrators

Arbitrators shall have the power to:

a. Require any person to attend a hearing as a witness;

b. Subpoena witnesses and documents when the relevancy of the

testimony and the materiality thereof has been demonstrated to the
arbitrators.

c. Require the retirement of any witness during the testimony of any

other witness.

d. Petition the court to take measures to safeguard and/or conserve any

matter which is the subject of the dispute in arbitration.

Hearing by arbitrators

The following are the procedure in hearings conducted by the arbitrators:

a. Arbitrators may ask both parties to brief statements of the issues in

controversy and/or an agreed statement of facts.

b. Thereafter, the parties may offer such evidence as they desire and shall
produce additional evidence as the arbitrators shall require or deem necessary.

c. Arbitrators shall receive as exhibits in evidence any document which

the parties may wish to submit and the exhibits shall be properly identified at
the time of submission. All exhibits shall remain in the custody of the Clerk of
Court during the course of arbitration.

d. Arbitrators may likewise make an ocular inspection of any matter or

premises which are in dispute but such may only be made in the presence of
all parties to the arbitration.

Time for rendering an award

Generally, arbitrators must render their award within thirty days after the
closing of the hearings or if the oral hearings shall have been waived, within
thirty days after the arbitrators shall have declared such proceedings in lieu of
hearing closed, unless the parties shall have stipulated by written agreement
the time within the arbitrators must render an award.

Grounds for vacating an award

The court must make an order vacating the award upon the petition of any
party to the controversy when such party proves affirmatively that in
arbitration proceedings;

a. The award was procured by corruption, fraud or other undue means; or

b. There was evident partiality or corruption in the arbitrators or any of

them;

c. The arbitrators were guilty of misconduct in refusing to postpone the

hearing upon sufficient cause shown, or in refusing to hear evidence
pertinent and material to the controversy; that one or more of the arbitrators
was disqualified to act as such and willfully refrained from disclosing such
disqualifications or of any other misbehavior by which the rights of any party
have been materially prejudiced; or

d. The arbitrators exceeded their powers, or so imperfectly executed them,

that a mutual, final and definite award upon the subject matter
submitted to them was not made.

Grounds for modifying or correcting an award

In any of the following cases, the court must make an order modifying or
correcting the award, upon the application of any party to the controversy
which was arbitrated:

a. Where there was an evident miscalculation of figures, or an evident

mistake in the description of any person, thing or property referred to in the
award; or

b. Where the arbitrators have awarded upon a matter not submitted to

them, not affecting the merits of the decision upon the matter submitted; or

C. Where the award is imperfect in a matter of form not affecting the merits of
the controversy, and if it had been a commissioner’s report, the defect could
have been amended or disregarded by the court.

MODULE 6. JUDICIAL DISPUTE RESOLUTION

OBJECTIVES

The students are expected to be able to:

1. Identify the difference of Judicial Dispute Resolution from other modes of

dispute resolution;

2. State the procedure in Judicial Dispute Resolution

Judicial Dispute Resolution

What is Judicial Dispute Resolution?

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.

Unless otherwise directed by the Supreme Court, all judges who have
undergone orientation in JDR procedures and completed their training in
mediation, conciliation and neutral evaluation, are authorized to conduct JDR
proceedings in accordance with these guidelines for the settlement of disputes
pending in their courts, after the parties failed to settle their disputes during
Court-Annexed Mediation at the Philippine Mediation Center Units (PMCU).

Procedure in Judicial Dispute Resolution

Judicial proceedings shall be divided into two stages: (1) from the filing of a
complaint to the conduct of CAM and JDR during the pre-trial stage, and (2)
pre-trial proper to trial and judgment. The judge to whom the case has been
originally raffled, who shall be called the JDR Judge, shall preside over the
first stage. The judge, who shall be called the trial judge, shall preside over the
second stage.

At the initial stage of the pre-trial conference, the JDR judge briefs the parties
and counsels of the CAM and JDR processes. Thereafter, he issues an Order
of Referral of the case to CAM and directs the parties and their counsels to
proceed to the PMCU bringing with them a copy of the Order of Referral. The
JDR judge shall include in said Order, or in another Order, the pre-setting of
the case for JDR not earlier than forty-five (45) days from the time the parties
first personally appear at the PMCU so that JDR will be conducted
immediately if the parties do not settle at CAM.

All incidents or motions filed during the first stage shall be dealt with by the
JDR judge. If JDR is not conducted because of the failure of the parties to
appear, the JDR judge may impose the appropriate sanctions and shall
continue with the proceedings of the case.

If the parties do not settle their dispute at CAM, the parties and their counsels
shall appear at the preset date before the JDR judge, who will then conduct
the JDR process as mediator, neutral evaluator and/or conciliator in order to
actively assist and facilitate negotiations among the parties for them to settle
their dispute. As mediator and conciliator, the judge facilitates the settlement
discussions between the parties and tries to reconcile their differences. As a
neutral evaluator, the judge assesses the relative strengths and weaknesses of
each party's case and makes a non-binding and impartial evaluation of the
chances of each party's success in the case. On the basis of such neutral
evaluation, the judge persuades the parties to a fair and mutually acceptable
settlement of their dispute.

The JDR judge shall not preside over the trial of the case 15 when the parties
did not settle their dispute at JDR.

Courts

1. Multiple Sala Court — If the case is not resolved during JDR, it shall be
raffled to another branch for the pre trial proper up to judgment.

For cases with pending applications for restraining orders/preliminary

injunctions, the judge to whom the case was raffled shall rule on the said
applications. During the pre-trial stage, the judge refers the case to CAM, but
if the parties do not settle at CAM, the case will be raffled to another branch
for JDR. If the parties do not settle at JDR, the case will be returned to the
branch that ruled on the applications for the pre-trial proper and up to
judgment.

2. Single Sala Court. — Unless otherwise agreed upon as provided below, the
JDR proceedings will be conducted by the judge of the pair court, if any,
otherwise, by the judge of the nearest court as determined by the concerned
Executive Judge. The JDR proceedings shall be conducted at the station
where the case was originally filed. The result of the JDR proceedings shall be
referred to the court of origin for appropriate action, e.g., approval of the
compromise agreement, trial, etc.

Notwithstanding the foregoing, before the commencement of the JDR

proceedings, the parties may file a joint written motion requesting that the
court of origin conduct the JDR proceedings and trial.

3. Family Courts — Unless otherwise agreed upon as provided below, the JDR
proceedings in areas where only one court is designated as a family court,
shall be conducted by a judge of another branch through raffle. However, if
there is another family court in the same area, the family court to whom the
case was originally raffled shall conduct JDR proceedings and if no settlement
is reached, the other family court shall conduct the pre-trial proper and trial.

Notwithstanding the foregoing, before commencement of the JDR proceedings,

the parties may file a joint written motion requesting that the family court to
which the case was originally raffled shall conduct the JDR proceedings and
trial.

Despite the non-mediatable nature of the principal case, like annulment of

marriage, other issues such as custody of children, support, visitation,
property relations and guardianship, may be referred to CAM and JDR to limit
the issues for trial.

4. Commercial, Intellectual Property, and Environmental Courts — Unless

otherwise agreed upon as provided below, the JDR proceedings in areas where
only one court is designated as commercial/intellectual
property/environmental court, hereafter referred to as special court, shall be
conducted by another judge through raffle and not by the judge of the special
court. Where settlement is not reached, the judge of the special court shall be
the trial judge. Any incident or motion filed before the pre-trial stage shall be
dealt with by the special court that shall refer the case to CAM.

Notwithstanding the foregoing, before commencement of the JDR proceedings,

the parties may file a joint written motion requesting that the special courts to
which the case was originally raffled shall conduct the JDR proceedings and
trial.

JDR During Trial

Cases may be referred to JDR even during the trial stage upon written motion
of one or both parties indicating willingness to discuss a possible compromise.
If the motion is granted, the trial shall be suspended 18 and the case referred
to JDR, which shall be conducted by another judge through raffle in multiple
sala courts.

If settlement is reached during JDR, the JDR court shall take appropriate
action thereon, i.e., approval/disapproval of the compromise agreement. If
settlement is not reached at JDR, the case shall be returned to the referring
court for continuation of trial.

In single sala courts, the JDR shall be conducted by the nearest court (or pair
court, if any) regardless of the level of the latter court. The result of the JDR
proceedings shall be referred to the court of origin for appropriate action, e.g.,
approval of the compromise agreement, trial, etc.

The parties may, by joint written motion, despite confidential information that
may be divulged during JDR proceedings, file a request that their case be not
transferred to other courts for JDR and that they agree to have the trial judge
continue the trial should the case not be settled through JDR.

Settlement Period

Any Settlement Period declared by the Supreme Court is understood to

include JDR and, therefore, half of all cases referred to mediation shall be for
JDR settlement. The procedure shall be as stated in Roman Numeral IV above,
except that no written motion is required from the parties for their case to be
referred to JDR.

Party Participation

1. Individual Party Litigants

The party litigants shall personally attend all mediation conferences or

through duly authorized representatives. The authority of the representatives
shall be in writing and shall state that they are fully empowered to offer,
negotiate, accept, decide, and enter into a compromise agreement without
need of further approval by or notification to the authorizing parties.

2. Corporate Party Litigants

In case of corporations, the representatives must be senior management

officials with written authority from the Board of Directors to offer, negotiate,
accept, decide, and enter into compromise agreement without need of further
approval by or notification to the authorizing parties.

Judgments/Decisions in JDR

Decisions/Judgments approving the compromise agreements of the parties,

through the efforts of the judge as a mediator, conciliator or neutral evaluator,
shall contain a statement to the effect that the Judgments/Decisions were

achieved through JDR. This is to distinguish Judgments/Decisions approving

compromise agreements secured through CAM. Copies of said
Judgments/Decisions shall be submitted to the Philippine Mediation Center
Unit for documentation purposes.

Sanctions

A party who fails to appear on the date set for JDR conference, may forthwith
be imposed the appropriate sanction as provided in Rule 18 of the Revised
Rules of Court and relevant issuances of the Supreme Court including, but
not limited to censure, reprimand, contempt, and requiring the absent party
to reimburse the appearing party his costs, including attorney's fees for that
day up to treble such costs, payable on or before the date of the re-scheduled
setting. Sanctions may be imposed by the JDR judge upon motion of the
appearing party or motu proprio.

Upon justifiable cause duly proved in the hearing of the motion to reconsider
filed by the absent party, the sanctions imposed may be lifted, set aside or
modified in the sound discretion of the JDR judge.

A representative who appears on behalf of an individual or corporate party

without the required authorization by special power of attorney or board
resolution, respectively, may similarly be imposed appropriate sanctions.

Duration of JDR proceedings

To complete the JDR process, judges of the First Level Courts shall have a
period of not exceeding thirty (30) days, while judges of the Second Level
Courts shall have a period of not exceeding sixty (60) days. A longer period,
however, may be granted upon the discretion of the JDR judge if there is a
high probability of settlement and upon joint written motion of the parties.
Both periods shall be computed from the date when the parties first appeared
for JDR proceedings as directed in the respective Orders issued by the judge.
As far as practicable, JDR conferences shall be set not more than two (2)
weeks apart so as to afford the parties ample time to negotiate meaningfully
for settlement.

In criminal cases covered by CAM and JDR, where settlement on the civil
aspect has been reached but the period of payment in accordance with the
terms of settlement exceeds one (1) year, the case may be archived upon
motion of the prosecution, with notice to the private complainant and
approval by the judge.

Suspension of periods

The period during which the case undergoing JDR proceedings shall be
excluded from the regular and mandatory periods for trial and rendition of
judgment in ordinary cases and in cases under summary proceedings.

Settlement

A. Civil Cases:

If full settlement of the dispute is reached, the parties, assisted by their

respective counsels, shall draft the compromise agreement which shall be
submitted to the court for a judgment upon compromise, enforceable by
execution.

Where full compliance with the terms of the compromise is forthwith made,
the parties, instead of submitting a compromise agreement, shall submit a
satisfaction of claims or a mutual withdrawal of the parties' respective claims
and counterclaims. Thereafter, the court shall enter an order dismissing the
case.

If partial settlement is reached, the parties shall, with the assistance of

counsel, submit the terms thereof for the court's approval and rendition of a
judgment upon partial compromise, which may be enforced by execution
without waiting for resolution of the unsettled part.

In relation to the unsettled part of the dispute, the court shall proceed to
conduct trial on the merits of the case should the parties file a joint motion for
him to do so, despite confidential information that may have been divulged
during the conciliation/mediation stage of the proceedings. Otherwise, the
JDR Judge shall turn over the case to a new judge by re-raffle in multiple sala
courts or to the originating court in single sala courts, for the conduct of pre-
trial proper and trial.

B. Criminal Cases:

If settlement is reached on the civil aspect of the criminal case, the parties,
assisted by their respective counsels, shall draft the compromise agreement
which shall be submitted to the court for appropriate action.

Action on the criminal aspect of the case will be determined by the Public
Prosecutor, subject to the appropriate action of the court.

If settlement is not reached by the parties on the civil aspect of the criminal
case, the JDR judge shall proceed to conduct the trial on the merits of the
case should the parties file a joint written motion for him to do so, despite
confidential information that may have been divulged during the JDR
proceedings. Otherwise, the JDR Judge shall turn over the case to a new
judge by re-raffle in multiple sala courts or to the originating court in single
sala courts, for the conduct of pre-trial proper and trial.

Pre-trial Proper

Where no settlement or only a partial settlement was reached, and there being
no joint written motion submitted by the parties, as stated in the last
preceding paragraphs, the JDR judge shall turn over the case to the trial
judge, determined by re-raffle in multiple sala courts or to the originating
court in single sala courts, as the case may be, to conduct pre-trial proper, as
mandated by Rules 18 and 118 of the Rules of Court.

Trial and Judgment

The trial judge to whom the case was turned over, shall expeditiously proceed
to trial, after the pre-trial and, thereafter, render judgment in accordance with
the established facts, evidence, and the applicable laws.

MODULE 7. THE KATARUNGANG PAMBARANGAY LAW

OBJECTIVES

1. Familiarize the Katarungang Pambarangay Law

2. Enumerate the composition of Lupong Tagapamayapa

3. Identify the cases which falls under the jurisdiction of the Katarungang
Pambarangay Law.

The Barangay Justice System

The Barangay Justice System is not part of the judicial system. But the
Judiciary recognizes that strengthening the grassroot structure will definitely
have positive effects in the administration of justice as it may help unclog
court dockets.

Katarungang Pambarangay Law

Katarungang Pambarangay is an innovation of the Philippine justice system.

It provides for resolution of disputes at the barangay level in order to achieve
peace and harmony within the community and to provide an accessible and
effective form of justice for community members.

Presidential Decree 1508 also known as the Katarungang Pambarangay Law

is the law that establish the Katarungang Pambarangay System. It was signed
on June 11, 1978 and took effect on December 11, 1978. The law formally
organized and institutionalized the system of amicable settlement of disputes
at the barangay level, with the purpose of promoting harmony, peace and
order and community cooperation. It recognizes and formalizes the tradition
of village-centered dispute resolution. The avowed purpose, expressly stated in
the law itself, is to:

1.Promote the speedy administration of justice;

2.Implement the constitutional mandate to preserve and develop Filipino

culture; and

3.To strengthen the family as a basic social institution.

It establishes a system of informal justice in which mediation is conducted by

either the barangay captain, the principal neighborhood/village official whose
everyday occupation is normally non-governmental, or by a conciliation panel
of village/neighborhood residents. The Katarungang Pambarangay rules direct

the barangay captains and conciliation panel to process conflicts in an

informal manner without regard to technical rules of evidence, and as is best
calculated to effect a fair settlement of the dispute and bring about a
harmonious relationship of the parties.

In terms of its goals, the Katarungang Pambarangay law sets forth as its
official objectives the speedy administration of justice and the diversion of
disputes from the regular courts as a means of reducing the alleged
congestion in the national adjudicative institutions.

From a political perspective, the Katarungang Pambarangay law presents two

paradoxes. First, as a system of informal justice designed ostensibly to divert
disputes from the adjudicative institutions of the national legal system, the
law might seem to decrease the Philippine government’s control over civil
society. Yet the result is the exact opposite; the Katarungang Pambarangay
law increases the power of the State. Second, given the cooptation of the
traditional method of dispute processing by the Katarungang Pambarangay
system, one might expect resistance to the implementation of the new law. Yet
the rural population does not oppose the Katarungang Pambarangay’s system
of informal justice.

Republic Act 7160 otherwise known as the 1991 Local Government Code gives
barangays the mandate to enforce peace and order and provide support for
the effective enforcement of human rights and justice. It expanded the scope
and powers of the Katarungang Pambarangay or the Barangay Justice System
designed not merely to decongest the courts of cases but to address
inequalities in access to justice, particularly experienced by marginalized
communities. The barangays, being the basic political unit in the country, is
in the most strategic position to facilitate resolution or mediation of
community and family disputes, alongside its mandate to deliver basic
services.

Decentralization has facilitated the recognition of the Katarungang

Pambarangay or Barangay Justice System as an alternative venue for the
resolution of disputes. The challenge facing local governments now is to
maximize and harness the katarungang pambarangay as one of the most
valuable mechanisms available in administering justice, advancing human
rights protection and resolving and/or mediating conflict at the barangay level
through non-adversarial means.

The Local Government Code of 1991 (RA 7160) took effect on January 1, 1992,
and included provisions for the Katarungang Pambarangay. The revision of
the Katarungang Pambarangay Law expanded the jurisdiction of the
Katarungang Pamabarangay to include a wider range of cases and made some
minor procedural changes to the law. The administration and implementation

of the Katarungang Pambarangay was devolved to the local government units

(LGUs), specifically to the Office of the City/Municipal Mayor. Every
city/municipal council is now mandated by law to provide the necessary
budgetary outlay for the efficient administration and implementation of the
Katarungang Pambarangay.

The DILG, through the Economic and Incentives Awards Program, is tasked to
provide incentive award to outstanding Lupong Tagapamayapa at the regional
and national levels. The Department of Justice is mandated to issue the
necessary implementing rules, regulations and amendatory rules.

Important Terminologies

Adjudication

It is the power of courts or quasi-judicial agencies to decide cases filed before

them and falling within their jurisdiction.

Amicable Settlement

It is an agreement reached during mediation and conciliation proceedings.

Arbitration

It is the process wherein the third party from outside the judicial system is
chosen by the parties to hear and decide their dispute.

Arbitration Award

It is the decision reached by either the lupon chairperson or pangkat, as the

case may be, upon prior agreement in writing by the parties to a dispute for
the adjudicators to resolve it.

Complaint

It is a concise statement of ultimate facts constituting the plaintiff’s cause and

causes of action.

Conciliation

It is a process wherein the Pangkat forgoes the power to decide or recommend

but assist the parties to isolate issues and options to reach a settlement by
consensus that jointly satisfies their needs.

Katarungang Pambarangay

It is a system of justice administered at the barangay level for the purpose of

amicably settling disputes through mediation, conciliation or arbitration
among the family or barangay without resorting to the courts.

Lupong Tagapamayapa (Lupon)

It is a body organized in every barangay composed of Punong Barangay as the

chairperson and not less than ten (10) and more than twenty from which the
members of every pangkat shall be chosen.

Mediation

It is a process wherein the Lupon chairperson or Barangay Chairperson

assists the disputing parties to reach a settlement by consensus that jointly
satisfies their needs.

Pangkat Tagapagkasundo (Pangkat)

It is a conciliation panel constituted from the Lupon membership for every

dispute brought before the Lupon consisting of three (3) members after the
Punong Barangay has failed in his mediation efforts.

THE KATARUNGANG PAMBARANGAY

The Katarungang Pambarangay or Barangay Justice System is a community-

based dispute settlement mechanism that is administered by the basic
political unit of the country, the barangay. As a community-based mechanism
for dispute resolution, it covers disputes between members of the same
community (generally, same city/municipality) and involves the Punong
Barangay and other members of the communities as intermediaries.

Prior to the enactment of Republic Act No. 7160, the establishment of the
Barangay Justice System had been covered by Presidential Decree 1508 in
1978 and Batas Pambansa Blg. 337 or the 1983 Local Government Code.

When PD 1508 was first decreed the setting up of the Barangay Justice
System, the law had the following objectives:

a.To promote the speedy administration of justice;

b.To minimize the indiscriminate filing of cases in courts;

c.To minimize the congestion of court dockets and thereby enhance the
quality of justice dispensed by the courts;

d.To perpetuate and recognize the time-honored tradition of amicably settling

disputes at the community level.

These same objectives are stated in the Katarungang Pambarangay Rules that
were promulgated by the Department of Justice on June 1, 1992, pursuant to
the mandate of the Local Government Code.

Under the Barangay Justice System, the main strategy for settling disputes is
to provide a venue for the disputing parties to search for a solution that is
mutually acceptable. Hence, the primary role of the system is not to decide
disputes and impose a solution on the parties but to assist the parties in
discussing the possible amicable settlement of their disputes.

The Barangay Justice System provides an alternative mode for dispute

resolution to the costly and lengthy process of settling disputes in regular
courts. instead of going through the very technical procedure of filing formal
pleadings and presenting evidence in courts, the parties of a dispute are given
the opportunity to try to talk to each other and resolve their disputes amicably.

In the Barangay Justice System, the parties do not need to secure the services
of lawyers. The law prohibits the participation of lawyers in the conciliation
proceedings. It provides a friendly, inexpensive, and speedy forum for the
settlement of disputes where the parties can freely explore options for
amicably resolving their disputes without resorting to the courts.

Structure of the Katarungang Pambarangay

The Punong Barangay is the primary implementor of the Katarungang

Pambarangay. The role of the Punong Barangay under Katarungang
Pambarangay Law (RA 7160) is two-fold:

1. To serve as an administrator pursuant to the provisions of the Katarungang

Pambarangay Law;

2. To assist parties to reach an amicable settlement, through the use of

mediation skills and procedures, or if requested by the parties, to render a fair
and reasonable decision through the arbitration process.

As a Chairman of the Lupon, the Punong Barangay has many tasks outlined
in Katarungang Pambarangay Law. In his role as an acknowledged leader of
the community, the Punong Barangay is expected to represent all the people
in performing the following administrative duties:

a.Recruit and appoint Lupon members;

b.Orient and train Lupon members;

c.Constitute the Pangkat;

d.Serve as Chairman of the Lupon and conduct regular monthly meetings of

the Lupon;

e.Supervise the Secretary of the Lupon and ensure that reports and
documents are complete;

f.Enforce amicable settlement or arbitration awards.

Composition of the Lupong Tagapamayapa

The Lupong Tagapamayapa is composed of:

a.Punong Barangay, as chairman

b.Ten (10) to twenty (20) members.

Qualifications of members of the Lupon

a.Actual residents/working in the barangay

b.Of legal age

c.With the following qualities

i. Integrity

ii. Impartiality

iii. Independence

iv. Fairness

v. Reputation for probity

vi. Patience

vii. Resourcefulness

viii. Open-mindedness

ix. Flexibility

Disqualification of Lupon Members

a.Below 18 years of age

b.Incompetent

c.Convicted of a crime carrying with it penalties of perpetual or temporary

disqualification from holding public office;

d.Elected government official

e.Member of armed forces who is in the active service.

Notice to Constitute the Lupon

The notice to constitute the lupon shall be and must:

a.Include the names of proposed members who have expressed their

willingness to serve;

b.Be prepared by the punong barangay within the first fifteen (15) days
from the start of his term of office.

c.Posted in three (3) conspicuous places in the barangay continuously for

a period of not less than three (3) weeks.

Oath and term of office

Upon appointment, each lupon member shall take the oath of office before the
punong barangay. He shall hold office until a new lupon is constitutes on the
third year following his appointment unless sooner terminated by resignation,
transfer of residence or place of work, or withdrawal of appointment by the
punong barangay with the concurrence of the majority of all the members of
the lupon.

Vacancy of the Lupon

Should a vacancy occur in the lupon for any cause, the punong barangay
shall immediately appoint a qualified person who shall hold office only for the
unexpired portion of the term.

Functions of the Lupon

The Lupon shall:

a.Exercise administrative supervision over the conciliation panels provided

herein;

b. Meet regularly once a month to provide a forum for exchange of ideas

among its members and the public on b.matters relevant to the amicable
settlement of disputes, and to enable various conciliation panel members
to share with one another their observations and experiences in effecting
speedy resolution of disputes; and

c.Exercise such other powers and perform such other duties and functions
as may be prescribed by law or ordinance.

Secretary of the lupon

The Barangay Secretary shall serve as the secretary of the lupon.

Duties of the Secretary of the Lupon

a.He shall record the results of mediation proceedings before the punong
barangay;

b.Submit a report thereon to the proper city or municipal courts;

c.He shall also receive and keep the records of proceedings submitted to
him by the various conciliation panels.

Pangkat Tagapagkasundo

It is the conciliation panel consists of three (3) members chosen by the parties
to the dispute from the list of members of the lupon.

Note:

The provincial, city legal officer or prosecutor or the municipal legal officer
shall render legal advice on matters involving questions of the law to the
punong barangay or any lupon or pangkat member whenever necessary in
the exercise of his functions in the administration of the Katarungang
Pambarangay.

The lupon of each barangay shall have authority to bring together the
parties actually residing in the same city or municipality for amicable
settlement of all disputes except:

a.Where one party is the government, or any subdivision or

instrumentality thereof;

b.Where one party is a public officer or employee, and the dispute relates
to the performance of his official functions;

c.Offenses punishable by imprisonment exceeding one (1) year or a fine

exceeding five thousand pesos (P5,000.00);

d.Offenses where there is no private offended party;

e. Where the dispute involves real properties located in different cities or

municipalities unless the parties thereto e.agree to submit their
differences to amicable settlement by an appropriate lupon;

f.Disputes involving parties who actually reside in barangays or different

cities or municipalities, except where such barangay units adjoin each
other and the parties thereto agree to submit their differences to amicable
settlement by an appropriate lupon;

g.Such other classes of disputes which the President may determine in the
interest of Justice or upon the recommendation of the Secretary of Justice.

The court in which non-criminal cases not falling within the authority of the
lupon under this Code are filed may, at any time before trial motu propio refer
the case to the lupon concerned for amicable settlement.

Venue

a.If the dispute is between persons actually residing in the same barangay,
amicable settlement shall be before the lupon of said barangay;

b.Those involving actual residents of different barangays within the same city
or municipality shall be brought in the barangay where the respondent or any
of the respondents actually resides, at the election of the complaint.

c.All disputes involving real property or any interest therein shall be brought
in the barangay where the real property or the larger portion thereof is
situated;

d.Those arising at the workplace where the contending parties are

unemployed or at the institution where such parties are enrolled for study,
shall be brought in the barangay where such workplace or institution is
located.

PROCEDURE IN KATARUNGANG PAMBARANGAY

Turning from the jurisdiction and venue for the Katarungang

Pambarangay, its procedural steps are as follows-any individual who has a
cause of action against another individual involving any matter within the
authority of the Lupon first pays a small filing fee. Subsequently, he or she
complains orally or in writing to the Lupon chairman of the barangay. In
the next working day, the Lupon chairman notifies the respondent(s)
about the complaint and tells the respondent(s), the witnesses, and the
complainant to appear before him for a mediation within three days. If the
chairman fails to mediate the dispute successfully within fifteen days from
the meeting with the parties, he or she sets the date for the Pangkat
mediation.

The Pangkat convenes no more than three days from its constitution, at
the time set by the Lupon Chairman, to hear both parties and their
witnesses, to simplify the issues, and to explore all possibilities for
amicable settlement. For this purpose, the Pangkat may issue summons
for the personal appearance of the parties and witnesses. If a party moves
to disqualify any member of the Pangkat by reason of relationship, bias,
interest, or any other similar grounds discovered after the constitution of
the Pangkat, a majority vote of the Pangkat determines whether
disqualification is appropriate, and this decision is final.

The Pangkat is to arrive at a settlement or resolution of the dispute within

fifteen days from the day it convenes. This period, at the discretion of the
Pangkat, can be extended for another period which does not exceed fifteen
days. In clearly meritorious cases, a longer period may be set.

All proceedings for settlement are public and informal. That is, the
proceedings are conducted in a relaxed, even friendly, atmosphere and
they are not bound by rigid or technical rules of court procedure. However,
in certain cases, the Lupon chairman or Pangkat chairman may exclude
the public from the proceedings in the interest of privacy, decency, or
public morals.

As mandated by law for the Katarungang Pambarangay proceedings, the

parties must appear in person without the assistance of counsel or
representatives, except for minors and people deemed incompetent, who
may be assisted by their non-lawyer next-of-kin.

Once there is a mediated settlement, it is written in a language or dialect

known to the parties, signed by the parties, and confirmed in writing by
the Lupon chairman or Pangkat chairman. This signed settlement has the
force and effect of a final judgment of a court after ten days, unless either
party repudiates the settlement or files a petition to nullify the award
before the proper city or municipal court.

If a party wishes to repudiate the signed document, he or she must file a

statement with the Lupon chairman. Such a statement can be made if the
consent was vitiated by fraud, violence, or intimidation; perceived
unfairness, however, cannot form the basis of an appeal.

If there is no disagreement within the ten-day period, the secretary of the

Lupon transmits the settlement to the appropriate city or municipal court
within five days after the ten-day lapse. In addition, the secretary
furnishes copies to each of the parties to the settlement, as well as to the
Lupon chairman. The Lupon enforces the agreement within six months
from the date of the settlement; after six months, the agreement may be
enforced by action in the appropriate city or municipal court.

The certification for filing a complaint in court or any government office

shall be issued by Barangay authorities only upon compliance with the
following requirements:

1.Issued by the Lupon Secretary and attested by the Lupon Chairman

(Punong Barangay), certifying that a confrontation of the parties has taken
place and that a conciliation settlement has been reached, but the same
has been subsequently repudiated (Sec. 412, Revised Katarungang
Pambarangay Law; Sec. 2[h], Rule III, Katarungang Pambarangay Rules);

2.Issued by the Pangkat Secretary and attested by the Pangkat Chairman,

certifying that:

a.a confrontation of the parties took place but no conciliation/settlement

has been reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or

b.that no personal confrontation took place before the Pangkat through no

fault of the complainant (Sec. 4[f], Rule III, Katarungang Pambarangay
Rules).

3.Issued by the Punong Barangay, as requested by the proper party on the

ground of failure of settlement where the dispute involves members of the
same indigenous cultural community, which shall be settled in accordance
with the customs and traditions of that particular cultural community, or
where one or more of the parties to the aforesaid dispute belong to the
minority and the parties mutually agreed to submit their dispute to the
indigenous system of amicable settlement, and there has been no
settlement as certified by the datu or tribal leader or elder to the Punong
Barangay of place of settlement (Secs. 1,4 & 5, Rule IX, Katarungang
Pambarangay Rules); and

4.If mediation or conciliation efforts before the Punong Barangay proved

unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b],

Revised Katarungang Pambarangay Law; Sec. 1, c. (1), Rule III,

Katarungang Pambarangay Rules), or where the respondent fails to appear
at the mediation proceeding before the Punong Barangay (3rd par. Sec. 8,
a, Rule VI, Katarungang Pambarangay Rules), the Punong Barangay shall
not cause the issuance at this stage of a certification to file action, because
it is now mandatory for him to constitute the Pangkat before whom
mediation, conciliation, or arbitration proceedings shall be held.

NOTE:

A case filed in court without compliance with prior Barangay Conciliation

which is a pre-condition for formal adjudication may be dismissed upon
motion of defendants, not for lack of jurisdiction of the court but for failure
to state a cause of action or prematurity or the court may suspend
proceedings upon petition of any party under Sec.1, Rule 21 of the Rules
of Court and refer the case motu proprio to the appropriate Barangay
authority.

MODULE 8. AMICABLE SETTLEMENT , CONCILIATION AND

ARBITRATION UNDER THE KATARUNGANG PAMBARANGAY LAW

OBJECTIVES

1.Determine the procedure of amicable settlement.

2.Enumerate the forms of settlement.

3.Recognize the effect of amicable settlement.

4. Familiarize with conciliation and arbitration process.

DISPUTE RESOLUTION UNDER THE KATARUNGANG PAMBARANGAY

SYSTEM

If parties are unable to settle disputed themselves through negotiation and if

the disputes falls under the jurisdiction of the Katarungang Pambarangay,
they must bring the dispute to the Punong Barangay to attempt settlement
prior to filing their complaint in court. In the Katarungang Pambarangay
system, the Punong Barangay will, as directed by the parties, mediate or
arbitrate the case. If the Punong Barangay is unable to achieve a settlement,
the case is referred to the Pangkat ng Tagapagkasundo, a panel of three
members of the Lupong Tagapamayapa, who can conciliate, mediate or
arbitrate the case. If neither the Punong Barangay nor the Pangkat is able to
effect a settlement, the Lupon Secretary or the Pangkat Secretary will issue a
certificate to file action in court and the parties may then file the complaint in
court. The Katarungang Pambarangay law also provides for the resolution of
disputes through indigenous system of dispute resolution; where settlement is
not achieved, the Punong Barangay will issue a certificate to file action in
court.

The essence of the Katarungang Pambarangay Law is the amicable settlement

of disputes wherein the disputing parties are encouraged to make mutual
concessions to obtain a peaceful resolution of the dispute without formal
adjudication thereof. The important consideration in amicable settlement is
the extent to which the parties are willing to compromise their respective
claims against each other within the limits imposed by law, morals, good
customs, public order and public policy.

AMICABLE SETTLEMENT

It is an agreement reached during mediation and conciliation proceedings.

Who may initiate proceeding?

Any individual who has a cause of action against another individual involving
any matter within the authority of the lupon may complain, orally or in
writing, to the lupon chairman of the barangay.

PROCEDURE FOR AMICABLE SETTLEMENT

Mediation by lupon chairman

Upon the receipt of the complaint, the lupon chairman shall within the next
working day summon the respondents with notice to the complainants for
them and their witnesses to appear before him for a mediation of their
conflicting interests. If he fails in his mediation effort within fifteen (15) days
from th first meeting of the parties before him, he shall forthwith set a date for
the constitution of the pangkat.

Suspension of prescriptive period of offenses

While the dispute is under mediation, conciliation or arbitration, the

prescriptive periods for offenses and cause of action under existing laws shall
be interrupted upon filing of the complaint with the punong barangay. The
prescriptive periods shall resume upon receipt by the complainant of the
complaint or the certificate of repudiation or of the certification to file action
issued by the lupon or pangkat secretary; Provided , however, that such
interruption shall not exceed sixty (60) days from the filing of the complaint
with the punong barangay.

Issuance of summons; hearing

The pangkat shall convene not later than three days from its constitution, on
the day and hour set by the lupon chairman, to hear both parties and their
witnesses, simplify issues and explore all possibilities for amicable settlement.
For this purpose, the pangkat may issue summons for the personal
appearance of parties and witnesses before it.

Period to arrive at settlement

The pangkat shall arrive at a settlement or resolution of the dispute within

fifteen (15) days from the day it convenes in accordance with this section. This

period shall, at the discretion of the pangkat be extendible for another period
which shall not exceed fifteen (15) days, except in clearly meritorious cases.

Form of Settlement

All amicable settlements shall be in writing, in a language or dialect known to

the parties, signed by them and attested to by the lupon chairman or the
pangkat chairman, as the case may be. When the parties to the dispute do not
use the same language or dialect, the settlement shall be written in the
language known to them.

Subject Matter for Amicable Settlement

All disputes, EXCEPT:

a. Where one party is the government or any subdivision or instrumentality

thereof;

b. Where one party is a public officer or employee and the dispute relates to
the performance of his duties;

c. Offenses punishable by imprisonment exceeding one (1) year or a fine

exceeding P5,000.

d. Offenses where there is no private offended party;

e. Where the dispute involves real property located in different cities or

municipalities unless the parties agree to submit their differences to amicable
settlement by an appropriate Lupon;

f. Disputes involving parties residing in barangays of different cities or

municipalities except where such barangay adjoin each other and the parties
agree to submit to amicable settlement by an appropriate Lupon.

What are the varied methods of amicable settlement under Katarungang

Pambarangay?

The Katarungang Pambarangay Law provides for local disputes which fall
under its jurisdiction to be resolved through mediation, conciliation, or
arbitration by the Lupong Tagapamayapa of which the Punong Barangay is
the Chairman.

MEDIATION IN GENERAL

Mediation is a process of resolving disputes with the aid of a neutral person-

the Mediator- who helps parties identify issues and develops proposals to
resolve their disputes. Unlike in arbitration, the mediator is not empowered to
decide disputes.

Mediation is advantageous as it helps unclog court dockets, it is speedy but

inexpensive and it is better and more civilized solution to disputes.

The Philippine Mediation Center

The Philippine Mediation Center is establish to recruit, screen, train and

recommend mediators for accreditation of the Court. It require prospective
Mediators to do internship and undergo trainings.

The following cases are referable to mediation:

a. All civil cases, settlement of estates, and cases covered by the Rule on
Summary Procedure, except those which by law may not be compromised.

b. Cases cognizable by the Lupong Tagapamayapa under the Katarungang

Pambarangay Law.

c. The civil aspect of BP 22 cases

d. The aspect of quasi-offenses under Title 14 of the Revised Penal Code.

In the Philippines, the Mediation Network for Sustainable Peace has been the
pioneer in resolving Community Based Mediation. MedNet calls this the “use
of power with grace”. It means the use of power that person or a group of
persons is anchored on. It also means the graceful use of power, where the
use of power does not disempower one’s self and others, instead it empowers
all the parties concerned to resolved the conflict in a just and caring way.

CONCILIATION

It is an alternative dispute resolution process whereby the parties use a

conciliator who meets with the parties both separately and together in an
attempt to resolve their differences.

Pre-condition to Filing of Complaint in Court

No complaint, petition, action, or proceeding involving any matter within the

authority of the lupon shall be filed or instituted directly in court or any other
government office for adjudication, unless there has been a confrontation
between the parties before the lupon chairman or the pangkat, and that no
conciliation or settlement has been reached as certified by the lupon secretary
or pangkat secretary as attested to by the lupon or pangkat chairman or
unless the settlement has been repudiated by the parties thereto.

Instances where parties may go directly to court

The parties may go directly to court in the following instances:

1.Where the accused is under detention;

2. Where a person has otherwise been deprived of personal liberty calling for
habeas corpus proceedings;

3.Where actions are coupled with provisional remedies such as preliminary

injunction, attachment, delivery of personal property and support pendente
lite; and

4. Where the action may otherwise be barred by the statute of limitations.

Note:

The customs and traditions of indigenous cultural communities shall be

applied in settling disputes between members of the cultural communities.

Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation,

as implemented by the Katarungang Pambarangay Rules and Regulations
promulgated by the Secretary of Justice, the certification for filing a complaint
in court or any government office shall be issued by Barangay authorities only
upon compliance with the following requirements:

1. Issued by the Lupon Secretary and attested by the Lupon Chairman

(Punong Barangay), certifying that a confrontation of the parties has taken
place and that a conciliation settlement has been reached, but the same has
been subsequently repudiated (Sec. 412, Revised Katarungang Pambarangay
Law; Sec. 2[h], Rule III, Katarungang Pambarangay Rules);

2. Issued by the Pangkat Secretary and attested by the Pangkat Chairman,

certifying that:

a. a confrontation of the parties took place but no conciliation/settlement has

been reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or

b. that no personal confrontation took place before the Pangkat through no

fault of the complainant (Sec. 4[f], Rule III, Katarungang Pambarangay Rules).

3. Issued by the Punong Barangay, as requested by the proper party on the

ground of failure of settlement where the dispute involves members of the
same indigenous cultural community, which shall be settled in accordance
with the customs and traditions of that particular cultural community, or
where one or more of the parties to the aforesaid dispute belong to the
minority and the parties mutually agreed to submit their dispute to the
indigenous system of amicable settlement, and there has been no settlement
as certified by the datu or tribal leader or elder to the Punong Barangay of
place of settlement (Secs. 1,4 & 5, Rule IX, Katarungang Pambarangay Rules);
and

4. If mediation or conciliation efforts before the Punong Barangay proved

unsuccessful, there having been no agreement to arbitrate (Sec. 410 [b],
Revised Katarungang Pambarangay Law; Sec. 1, c. (1), Rule III, Katarungang
Pambarangay Rules), or where the respondent fails to appear at the mediation
proceeding before the Punong Barangay (3rd par. Sec. 8, a, Rule VI,
Katarungang Pambarangay Rules), the Punong Barangay shall not cause the
issuance at this stage of a certification to file action, because it is now
mandatory for him to constitute the Pangkat before whom mediation,
conciliation, or arbitration proceedings shall be held.

A case filed in court without compliance with prior Barangay conciliation

which is a pre-condition for formal adjudication (Sec. 412 [a] of the Revised
Katarungang Pambarangay Law) may be dismissed upon motion of
defendant/s, not for lack of jurisdiction of the court but for failure to state a
cause of action or prematurity (Royales vs. IAC, 127 SCRA 470; Gonzales vs.
CA, 151 SCRA 289), or the court may suspend proceedings upon petition of
any party under Sec. 1, Rule 21 of the Rules of Court; and refer the case motu
proprio to the appropriate Barangay authority, applying by analogy Sec. 408
[g], 2nd par., of the Revised Katarungang Pambarangay Law which reads as
follows:

The court in which non-criminal cases not falling within the authority of the
Lupon under this Code are filed may at any time before trial, motu proprio
refer case to the Lupon concerned for amicable settlement.

ARBITRATION OPTION

One of the unique features of the Katarungang Pambarangay system is its

flexibility. Although primarily intended to help disputants reach amicable
settlement through conciliation and mediation, the system can also provide
arbitration should the parties so desire. If arbitration is the preferred process,
all the parties must agree in writing, at any stage in the proceedings, that they
will abide by the arbitration award of the Lupon chairman or the Pangkat.

As with the mediated settlement, the arbitration award is made in writing in

the language or dialect known to both parties to a dispute. This arbitration
award may be repudiated within five days upon certain grounds-such as fraud,
mistake, violence or intimidation-prescribed by the law; if the award is
repudiated, the case will go to trial.

The official award from the arbitration must be finalized within ten days after
the five-day lapse period for repudiation. The secretary of the Lupon transmits
the arbitration award to the appropriate city or municipal court within five
days from the date of the award and furnishes copies to each of the parties as
well as to the Lupon chairman. As with a mediated agreement, the arbitration
award is enforced by the Lupon within six months. After six months, it is
enforced by action in the appropriate city or municipal court.

Arbitration

It is a procedure in which a dispute is submitted, by agreement of the parties,

to one or more arbitrators who make a binding decision on the dispute.

Arbitration is another way of settling disputes wherein the parties agree to be

bound by a decision of a third person or body in place or body in place of a
regularly organized tribunal.

It can take place at any stage of the proceedings as long as both parties agree
in writing to abide by the arbitration award of the Lupon or the Pangkat. In
other words, either the lupon chairperson or punong barangay or the pangkat
chairperson can act as arbitrator.

In arbitration, the lupon chairperson or pangkat is given the power to render

decisions on the dispute with a prior agreement of the parties to be bound by
it. The parties shall present evidence as to the facts and merits of the case to
the arbitrator.

On the basis of these facts, the arbitrator makes a decision on what he/she
believes to be fair or just. In this case, the arbitrator must be neutral and

impartial in making the decision which must also be suitable to the disputing
parties.

Arbitration Process

Step 1. The arbiter orders its secretary to call the case;

Step 2. The Secretary identifies and enter into record all appearances from
both parties;

Step 3. The Arbiter calls the complainant to present his/her case together
with his/her evidence;

Step 4. When a witness is necessary, he/she is summoned to testify before

the proceeding.

Step 5. The Arbiter calls the respondent to present his/her defense; present
evidences and witnesses; in the manner afforded to the complaints;

Step 6. After the parties have completed their presentation, the case is closed
for resolution/decision.

Effect of failure of the parties to appear

If the complainant’s absence was found to be willful and not justified, the
complaint is outrightly dismissed and shall be barred from filing action in
court.

On the other hand, if the respondent’s absence is found to be also willful and
unjustified, then you can issue a certificate to file action and certificate to bar
counterclaim in favor of the complainant.

In arbitration hearing, the complainant and respondent will present their

respective case and submit all their necessary evidence. The Lupon
chairperson or the pangkat will then issue a resolution based on the merits of
the case, testimony of the witnesses and the evidence presented.

Effect of Amicable Settlement and Arbitration Award

The amicable settlement and arbitration award shall have the force and effect
of a final judgment of a court upon the expiration of ten (10) days from the
date thereof, unless repudiation of the settlement has been made or a petition
to nullify the award has been filed before the proper city or municipal court.

Repudiation

Any party to the dispute may, within ten (10) days from the date of the
settlement, repudiate the same by filing with the lupon chairman a statement
to that effect sworn to before him, where the consent is vitiated by fraud,
violence or intimidation. Such repudiation shall be sufficient basis for the
issuance of the certification for filing a complaint.

Transmittal of settlement and arbitration

The Secretary of the lupon shall transmit the settlement or the arbitration
award to the appropriate city or municipal court within five (5) days from the
date of the award or from the lapse of the ten-day period repudiating the
settlement and shall furnish copies thereof to each of the parties to the
settlement and the lupon chairman.

MODULE 9. CRISIS MANAGEMENT

OBJECTIVES

1.Define Crisis management

2.Familiarize with all the procedures related to crisis management.

3. Gain knowledge on managing crisis.

CRISIS MANAGEMENT

It refers to a turning point in the course of any situation. It is decisive, comes

into a crucial time stage or event. It may also denote a period of great peril,
danger or trouble whose outcome decides whether there may possible bad
consequences that will follow.

It is considered to have originated from either an act of God, also known as

“force majeure” or man made which may be intentional or accidental.

Crisis management is the act or manner of running or handling decisive

matters, which is crucial. It involves considerably the prevention of loss of life
and injury, loss or damage to property from hazards which cannot be
normally foreseen or prevented.

Constitutional Basis of Crisis Management

Section 4 and 5 of the 1987 Philippine Constitution articulated that it is the

prime duty of the government to serve and protect the people; and that the
maintenance of peace and order, the protection of life, liberty and property,
and promotion of the general welfare are essential for the enjoyment by all the
people of the blessings of democracy.

Risk Management

Involves assessing potential threats and finding the best ways to avoid those
threats.

Crisis Negotiation

It is a technique for law enforcement to communicate with people who are

threatening violence including barricaded subject, hostage taker, stalker,
threats, workplace violence or person threatening or other elements.

Crisis Management Plan

Crisis management methods of a business or organization.

Three elements of Crises Management

a. Threat to the organization or public

b. Element of surprise

c. Short decision time

Types of Crises

a. Natural Disaster – It is considered acts of God-such as environmental

phenomena as earthquakes, volcanic eruptions, floods, landslides, storms,
tsunamis and droughts that threaten life, property and the environment itself.

b. Technological Disaster – Those that are caused by human application of

science and technology.

c. Confrontation Crises – This occur when discontented individuals and/or

groups, fight business, government and various interest groups to win
acceptance of their demands and expectations.

Common type of Confrontation Crises

1.Boycott

2.Picketing

3.Sit ins

4.Blockade

5.Occupation of buildings

6.Resisting/ Disobeying police

7.Ultimatums to those in authority

d. Crises of malevolence – Opponents or miscreants individuals use criminal

means or other extreme tactics for the purpose of expressing hostility or anger
toward a company or country with aim of destabilizing or destroying it.

e. Crises of Organizational Deeds – This occurs when management takes

actions it knows will harm stakeholders without adequate precaution.

Objective of Crisis Management

1. Resolve without further incident.

2. Safety of all participants.

3. Apprehension of all perpetrators.

4. Accomplish the task within the framework of current community standards.

Theory of Crisis Management

1. Contain and negotiate.

2. Protect the innocent from harm.

3. Allow the passage of time so that the perpetrators can be reasoned.

4. Allow rhe passage of time so that the response force can avail of the
following:

a.Evaluate the situation;

b.Gather the information;

c.Explore alternative; and

d.Formulate a plan of action.

The 4P’s Crisis Management Model

1. Prediction

This stage involves foretelling of the likelihood of crisis occurring either

natural or man-made through the continuous assessment of all possible
threats and threat groups as well as the analysis of developing or reported
events and incidents.

A Crisis Manager, through his/her crisis management office, shall

systematically conduct Horizon Scanning or scanning for emerging threats
and conveying strategic warnings; and undertake Situation Awareness
processes at the strategic, operational and tactical levels.

2. Prevention

This stage involves the institution of passive and active security measures as
well as the remedy or solution of destabilizing factors and/or security flaws
leading to such crisis or emergencies.

A Crisis Manager, through his/her crisis management office, shall prepare or

update intra- and inter-agency contingency and crisis action plans.

3. Preparation

It entails planning, organizing, training and stock piling of equipment and

supplies needed for such crises or emergencies.

A Crisis Manager, through his/her crisis management office, shall

systematically undertake Prepare activities: organize, train, equip, exercise
and evaluate/improve. A Crisis Manager shall also undertake capability
building and enhancement activities for these Prepare procedures.

4. Performance

It is the actual execution or implementation of any of contingency plan when a

crisis situation occurs despite the proactive measures.

A Crisis Manager, through his/her crisis management office, shall

systematically determine and declare an incident as approaching crisis level.
Crises must be addressed at the lowest political jurisdiction. Nonetheless, the
responding local Crisis Management Committee (CMC) and the next higher
level Crisis Management Committee (CMC) shall be equally responsible for
determining the appropriate level of crisis response based on continuous and
thorough assessment of the situation. Their assessment must consider the

severity and nature of the crisis, and the capability of available forces or units
and resources.

5. Post-action and assessment

It is a component which begins when the crisis has been addressed and the
situation is deemed clear. It is in this phase where the organization is
returning to business as usual. Post-action activities seek ways to evaluate
and improve prevention, preparation and the actual execution.

A Crisis Manager, through his/her crisis management office, shall

systematically provide Post Action and Assessment Reports to the Sub-
Committee, National Crisis Management Committee and the
EXECOM/National Crisis Management Committee.

Phases of Crisis Management

Crisis management is continuing activity that has two distinct phases:

a. The Proactive Phase

It is designed to predict or prevent the probability of occurrence of crises at

the same time prepares to handle them when they occur. It encompasses the
first 3P’s of the 4P’s of crisis management model, namely: Prediction,
Prevention and Preparation.

b. The Reactive Phase

This phase covers the last of the 4P’s, the performance. The objectives in this
stage are:

1.To ensure a high probability of success in neutralizing the perpetrators;

2.To minimize or cushion the adverse effects of the crisis incident;

3.To ensure a smooth and speedy rehabilitation or return to normalcy.

HOSTAGE NEGOTIATION

In hostage situations, the general tendencies of hostage taker, is to focus their

attention prominent personalities to gain much needed leverage in the
negotiation.

Over the past decades, numerous hostage situation took place and the most
widely known among them were the incidents committed by Arab Terrorists
during the 20th games in Munich, West Germany in September, 1972; the
hostage taking by the Iranians of US Embassy personnel in Iran; the hijacking
of an Air France flight 139, July 1976 with mostly Israelis as passengers and
which craft was brought to Entebbe, Uganda by the terrorists.

The most important in conditions is improved communication and the

efficiency of the police in responding to call for emergency. For the better the
communication the faster the police could respond and thus shortest the
reaction time.

In hostage situation, the authorities are face with individual or group of

individuals with psychological mentality, commitment, behavior stress and
behavioral intolerance of varying degree- aggravated by the unpredictability of
human behavior.

Persons involved in a hostage situation

a. Hostage taker – Person who holds other people as hostage.

b. Hostage – Person held as security for a purpose of hostage taker.

c. Negotiator – Person charged with establishing communication with hostage

taker.

Negotiate – To arrange or settle by conferring or discussion.

Priorities in Hostage Situation

a. Preservation of life.

b. Apprehend hostage taker, recover and protect property.

c. Successfully negotiate.

To be able to successfully negotiate, there is a need to live on the part of the

hostage taker because a hostage taker who is bent in killing himself is a case
of non-negotiable. If not bent in killing himself, his intent, therefore, is to free
the hostage and not to harm them. So that the police must know what it is in
the mind of the hostage taker. A threat of force by the authorities will make
the hostage taker realize that if he does violence against the hostage, the
authorities can effectively deal with them and win.

PRINCIPLE OF HOSTAGE NEGOTIATION AND RECOVERY

1. The hostage has no value to the hostage taker. His only worth is as a tool to
get what the hostage taker wants, not from the hostage, but from the
authorities.

2. For hostage situation not to escalate into violence, it is to the interest of the
hostage taker, as to the authorities. In case if it goes bloody, the authorities
must always come out the victor.

PERSONS WHO CAN BE HOSTAGE TAKER

1. Mentally Deranged – those who suffer from delusion or hallucination. They

usually:

a.Sets the rule;

b.Reacts on overwhelming stress- thus compelled to take action to relieve

stress;

c.May take captive even his own family. He cannot be appealed to on rational
basis as he does not know or see the logic hence he is out of touch of reality.
He has own set of mission which he himself does not know.

2. Severe depression – those who suffer from mental aberration. They are
capable of:

a.Answer to life stresses and pain as suicide;

b.May murder his own family;

c.Take hostage to enforce irrational desires with no acceptable meaning.

3. Personality Disorder- An anti-social who deeply gained maladaptive

patterns of behavior as a result of child abuse. They are:

a.Unsocialized, incapable of loyalty to individuals and group;

b.Selfish, callous, irresponsible, impulsive and unable to feel guilt or learn

from experience. Whose patterns of behavior bring him repeatedly into conflict
with society;

c.A potential liar, primary to him is ego arousal or ego simulation.

4. Paranoid- believes threatened/persecuted. They are:

a.Highly suspicious of persons;

b.Acts with anti-value set to relieve stress or vindicate himself;

c.Impulsive.

5. Sociopath- manifested with traits or character bereft of conscience.

a.Impulsive-unable to delay gratification so if hostage is a woman, raping her

is a probability.

b.Sociable, easy-going and a spend thrift.

Generally because these deviants are emotionally tense, in hostage situation

when trapped extend a great deal of emotional, physical and psychic energy-
prolonging the passage of time shall wear them down. Calm attitude of the
negotiator is a must. The negotiator must:

a.Avoid words actions that could have the appearance of threat;

b.Firmness, avoid indecision or ambivalence hostage taker would redouble

efforts in the presence of such weakness;

c.To build rapport get negotiator of same race nationality, religion or

education.

6. Terrorists- these are persons who take hostages for political purpose
instrumental to achieving their objectives. They:

a.Tend to do violence-for maximum publicity and propaganda, political and

economic purposes;

b.Use threats and harassments to create atmosphere of fear, disregarding

women and children as victims;

c.Loyalty only to themselves and other allied groups.

TYPES OF HOSTAGE TAKERS AND THEIR INTENTS OR WANTS

a. Professional Criminal

1.To aid in the commission of a crime;

2.To facilitate escape.

b. Psycho Case

1.Deviant attention;

2.Vindication;

3.Relief.

c. Prisoners

1.Attention

2.Escape

3.Protest calling for more humane treatment.

d. Terrorists

1.Attention

2.To instill widespread fear among the populace;

3.Political influence;

4.Economic leverage.

Different types in terms of handling during hostage situation

1. Professional Criminal – Usually the easiest to deal with considered

relatively rational thinker after assessing the situation and weighing the odds,
in most cases, comes to terms with the police, refrain from unnecessary
violence or useless killing.

2. Psychotic Individual – Presents different and somewhat complex problem.

Tends to be irrational hence, less predictable. His actions, words he uses and
the demand he makes are valuable clues to his mental condition. He harbors
great inner conflicts and frustrations. He may even feel a degree of pleasure
from his precarious predicament, as he finds himself important being at the
center of attraction a position unique in his life. Prolonging time is essential
that will positively work for authorities. He is in great emotional tension and
will spend a great deal of physical and psychic energy that which eventually
wear him down.

3. Terrorists- Even more difficult hostage situation viewed as psychopathic

with a cause, under a leader of the group. When caught they rationalize by
claiming to be revolutionaries a situation they resolve to die for the cause.

May deteriorate in their causes by passage of time. In any case, if they kill one
of several hostages, the negotiators then must act to save the remaining
hostages- they will likely kill them all.

If an analogy might be made, a hostage negotiation is likened to a bomb scene,

where trained bomb personnel are sent to defuse the bomb.

One useful if not precise method of viewing the kidnap/hostage situation is

the examination of subject’s motivations.

Rational is used to describe the thinking of the perpetrator. Because, while

the greater many may say their actions are irrational, to them (perpetrators)
their belief in the cause makes their behavioral rational. In this case, such
cause of behavior is not the result of mental disease but stems from the
environment, education; behavior is not the result of mental disease but
stems from the environment, education and training. They view themselves as
patriot, hero or freedom fighters.

MARXIST ETHICS

According to Marx, the raison d’etre of man is to bring closer to reality the
revolution of the proletariat, where the small power elite which controls the
wealth of the world, is over thrown by the down trodden masses to whom
such wealth justly belongs.

The Marxist view is abundantly reflected in the writings of his followers- Mao
Tse Tung, who said that “ Power grows from the power of a gun.” Che
Guevarra wrote that people must see clearly the futility of maintaining the
fight for social goals within the framework of civil debate.

When a highly trained and motivated group hold a hostage and their demands
are non-negotiable an impasses is created. So that they are left with three
options:

1.Choose martyrdom, kill hostages, commit suicide.

2.Lessen demands to more realistic proportions; or

3.Surrender.

PRISON HOSTAGE SITUATION

Allowing the passage of time generally permits the leader to exploit his
position by consolidating his leadership. Thus, able to create a formidable
bastion which cannot be neutralized without loss of life. Whereas, action
taken immediately, before the prisoners can organize and arm themselves may
well be less costly.

Demand for freedom, normally is non-negotiable. But, if circumstances show,

it is the only way to save the hostages, it may be granted with the permission
of highest authority. And must be followed with hot pursuit after.

Demand for Superintendent, Warden or even Governor or highest authority,

as negotiator does not give incentives to surrender. In some cases, hostage
taker is bloated and demands for more. Perhaps, isolation and reason would
be the most effective way to handle this situation.

ANALYZE THE VICTIM (CAPTIVE OF HOSTAGES)

An investigation and study group was made to determine the effect of a living
captivity in the hostages, the results of this inquiries was startling,
particularly in the change of value set of the hostages. This phenomenon is
popularly known to the Stockholm syndrome, after an incident in which,
female hostages were held in a bank vault, by trapped would be robbers for
several days. The hostages after the release expressed strong attachment to
their captors, to the point of not testifying against them.

What could have changed or motivated the change in the value set of hostages
are the good and kind treatment they received from their captors; the long
hours of discussion they had with their captors not really bad, but with a
good cause or purpose.

UPON ARRIVAL AT THE SCENE OF INCIDENT THE NEGOTIATOR SHOULD

EXECUTE OR ACT IMMEDIATELY THE FOLLOWING:

a. Containment – controlling situation and area by people involved. Other

people or bystanders must be obliged to get out from the area as they may
add more problems.

b. Establish Contact- Immediately after positioning at advantage position,

communicate with the leader, he may introduce himself by saying, “My name
is ____________________, I am a ____________________. I am willing to help.”
Never tell him your rank; the hostage taker might think you can give. So that
he may ask for impossible demand. Neither, should the negotiator give the
feeling that he has the authority to decide. Do not bluff.

c. Time Lengthening – Give more time to the police to organize and coordinate
plan of action.

d. Telephone Negotiation Technique- Be the caller, plan and prepare, be ready

with graceful exit and discipline yourself to listen. Where a demand is

impossible to get, stall time by explaining that you need to talk other people.
Hold on to your concession. But when concession is granted try to get
something in return. Say a grant of food; get the release of sick or old people
in exchange. Then there is no demand, hostage taker may have no demand at
all.

c. Need for face-to-face conversation- Don’t be anxious. Prepare for proper

psychological, physical and emotional confrontation. Wear body armor,
possess a weapon, but if asks to come without weapon, ensure that they too
should lay down arms before entering. In entering, see to it that you are
protected with tactical back-up. And consider that hostage taker might have
body trap in some portions of the area- door or window of the building.
Coming up on face-to-face situation, maintain proper distance, observe their
movement, elicit a promise or motivate them to surrender. In retreating, or in
getting out of the room, face hostage takers slowly back out of the door with
good cover or tactical backup.

d. Surrender approach – It start with a position approach, act as if the

hostage taker will surrender. Do not talk too much. Gradually ask him to
surrender. Reassurance is the wisest thing to do. Talk details of surrender
process. And explain why now is better than later.

A commander should not be the designated negotiator because the hostage

taker will:

1.Have sense of importance;

2.He may make possible demand, knowing that he is dealing with the
commander.

Containment

It refers to controlling the area by authorities directly involved evacuate

civilians, stabilize situation and establish contact with the hostage taker. They
must deal only with the leader to avoid complications and further demand.

Telephone Negotiation Techniques

1.Be the caller. Talk with the leader only.

2.Plan and prepare.

3.Be ready with graceful exit.

4.Discipline yourself then.

5.Do not tell that you are the commander, neither your rank.

6.Just tell your name and introduce that you’re a negotiator and you are
willing to help.

7.Delay tactic- to wear down hostage taker, physically, psychologically and

emotionally. Will also give more time for police to organize and coordinate plan
course of action.

8.In case hostage taker wont talk, continue negotiating. Don’t lose hope.

Advantages of communication between the hostage taker and negotiator

1.Lessen tensions of hostage taker;

2.Gives more time for authorities to plan and coordinate course of action.

Advantages of telephone conversation

1.Easier to say decline demands;

2.Easier to conclude the conversation;

3.Conversation is quicker;

4.Important items are more easily committed;

5.Caller has the advantage.

Telephone conversation however, are impersonal where the negotiator is

unable to see the hostage taker, the hostages, reaction and conditions.
Weapons and ammunitions are non-negotiable.

Rules when having a face-to-face negotiation

1.Don’t be over anxious;

2.Wear body armor;

3.Have tactical back-up;

4.Traps at door or windows;

5.Entering without gun being pointed at you;

6.Face-to-face, mountain distance;

a. Persons distance – 1 to 3 feet;

b. Intimate distance – about 6 inches.

Effects of time

1.Hostage taker will wear down emotionally, psychologically;

2.Hostage taker has more demand for food and water;

3.Anxiety reduce, hostage taker given chance to organize his true self.

4.Hostage takers’ rationality increase.

5.Hostage taker-negotiator improves.

6.Hostage taker’s demand may be reduced.

7.Stockholm syndrome may develop.

PLANNING AND PREPARATION FOR HOSTAGE SITUATION

In a relatively small town or community where it could merely depend on a

small contingent of police force, it must for purpose of preparation designate a
crisis management task group.

Designation and duties

a. Field Commander

1.Takes charge of all forces.

2.Provide containment of hostage taker-scaled of place, evacuate civilians.

3.Establish contact with hostage taker.

4.Consult with command officer re-avenues open.

5.Wear civilian clothes.

b. Operational Aide

1.Report to yield negotiator;

2.Set up temporary headquarters;

3.Coordinate assignment of off-duty personnel arriving at scene.

4.Assisting units as necessary;

5.Relay orders/information to personnel involved;

6.Receives requests.

c. Administrative Aide

1.Report of field negotiator.

2.Supervise temporary headquarters;

3.Maintains record of operation and units at scene.

d. Patrol Personnel

1.Contain hostage takers (perpetrators) and help evacuate civilians out scene.

e. Assault Team

1.Sharpshooter

2.Chemical agent

NEEDED FACILITIES (TWO WAY RADIO; FOR EACH OF THE ABOVE AND
WHAT TO DO)

1.Set in single frequency.

2.Communication to originate from operational aide-form of orders, request or

updating information.

THINGS TO BE DONE

1. Dry Run – one way to insure hostage negotiating unit is capable of

establishing control over a situation.

2. Considerable Screening – members; one chosen, the team members- should

be given free reign in handling and evaluating of any incidents; for should a
senior office begins countermanding orders in the site, the results will
certainly be a both bundled.

3. Patrol units, assault unit, etc., should know exactly whose command they
are under.

4. Rescue efforts have to run strictly from the top down.

IMPLEMENTATION OF METHODS TO DEAL WITH HOSTAGE SITUATION

Hostage situation of the Revised PNP Operational procedures:

The following are the procedures to be followed in a hostage situation:

1.A crisis management task group shall be activated immediately.

2.Incident scene shall be secured and isolated.

3.Unauthorized persons shall not be allowed entry and exit to the incident
scene.

4.Witnesses’ names, addresses and other information shall be recorded.

Witnesses shall be directed to a safe location.

HOSTAGE NEGOTIATION TEAM COMPOSED OF:

a. Group Commander- There shall be only one ground commander in the area.

b. Negotiators- Negotiators shall be designated by the Ground Commander. No

one shall be allowed to talk to the hostage-taker without clearance from the
negotiating panel or ground commander.

c. Assault Team- An assault team shall be alerted for deployment in case the
negotiation fails. Members of the assault team shall wear authorized and
easily recognizable uniform during the conduct of the operation. Bonnets shall
not be used.

d. Assault Plan – the assault shall be planned to ensure minimal threat to life
for all parties.

c. Support Personnel – An ambulance with medical crew and a fire truck shall
be detailed at the incident.

PROCEDURES TO BE FOLLOWED DURING NEGOTIATIONS

The following shall be undertaken in the conduct of negotiations:

1.Stabilize and contain the situation;

2.Select the right time to make contact with the hostage-taker;

3.Take time when negotiating;

4.Allow hostage-taker to speak;

5.Don’t offer the hostage-taker anything. What he will ask for will be part of
the negotiation;

6.Avoid directing frequent attention to the victim when talking to the hostage-
taker.

7.Do not call them hostages. Be as honest as possible. Avoid tricks. Be sincere.

8.Never dismiss any request from the hostage-taker as trivial or unimportant;

9.Never say “no”;

10.Soften the demands;

11.Never set deadline; try not to accept a deadline;

12.Do not make alternate suggestions not agreed upon in the negotiation;

13.Do not introduce outsiders into the into the negotiation process, unless
their presence is extremely necessary in the solution of the crisis; provided
that they shall be properly advised on the do’s and don’ts of hostage
negotiations;

14.Do not allow any exchange of hostages, unless extremely necessary; in

particular, do not exchange a negotiator for a hostage.

15.Avoid negotiating face-to-face; and

Law enforcement officer without proper training shall not be allowed to

participate in hostage negotiations.

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