Chapter I: Principles and Philosophies of  Involves an attempt to work with others to

Reconciliation, Arbitration, negotiation and find some solution that fully satisfies their
Mediation concerns.
 Trying to find a creative solution to an
CONFLICT- Latin word – Conflingere – means to interpersonal problem.
come together for a battle.
 Serious agreement and argument about 5. Compromising
something important.  Moderate in both assertiveness and
 A natural disagreement or struggle between cooperativeness.
people which may be physical, or between  Mutually acceptable solution that partially
conflicting ideas. satisfies both parties.
 It falls intermediate between competing and
Conflict Strategies accommodating.
Kenneth Thomas and Ralph Kilmann (2015) –
developed five conflict resolution strategies: NEGOTIATION
 A process where two parties in a conflict or
1. Avoiding disagreement try to reach a resolution
 Unassertive and uncooperative . together.
 He does not deal with the conflict PROCESS
 Diplomatically sidestepping an issue, ● Prior – consult a lawyer.
postponing an issue until better time, simply ● During – parties or their
withdrawing from a threatening situation. representatives (lawyers) discuss
the issues to come to a resolution.
2. Competing
 Assertive and uncooperative . Principles of Negotiation
 Means “standing up for your rights”  REASON – to produce something better
defending a position which you believe is than the results that can be obtained
correct, or simply trying to win. without negotiation
 Competing is used by people who go into a  GOAL – an agreement that is acceptable to
conflict planning to win. all parties, to which they remain committed,
and which they indeed implement.
3. Accommodating
 Unassertive and cooperative . Mediation
 Complete opposite of competing.  Process where a neutral person assist the
 Individual neglects his own concerns to parties in discussing the matter and
satisfy the concerns of the other person; reaching a solution.
there is an element of self – sacrifice in this
mode. Mediator
 Might take the form of selfless generosity or ● A person who conducts mediation
charity, obeying another person’s order ● Help the parties communicate
when you would prefer not to, or yielding to ● Ensures that communication between the
another’s point of view. parties is fair and honest.
● He is not judge or an arbitrator and cannot
4. Collaborating take the side of either party, gives legal
 Assertive and cooperative – the complete advise, and/or provides counseling.
opposite of avoiding.
 ● Can assist by clarifying issues, identifying ● Private and confidential, avoiding public
concerns, and helping parties understand disclosure of personal or business
each other’s interest. problems. Reduces hostility and preserve
● Can assist the parties in reaching an ongoing relationships.
agreement between them but will not force ● Allows the avoidance of uncertainty, time,
the parties into a solution during mediation. cost and stress of going to trial.
● Allows mutually acceptable agreements
Mediation Done tailored to meet the parties need.
● Decisions made are private. ● Win – win solution.
● Can take place in person where parties
meet face to face for discussions. Disadvantages of Mediation
● Or the parties may be place at separate ● Possibility that a settlement between the
locations where the mediator communicates parties may not rise.
information between parties. ● Lacks the support of any judicial authority.
● After mediation, the parties can sign a ● Absence of formality-not based on any
Memorandum of Agreement (MOA). legal principle.
● Truth of an issue may not be revealed.
Memorandum of Agreement (MOA)
● A cooperative agreement written between Arbitration
the parties to obey the agreed terms and ● A process where a neutral third party
conditions. makes a decision. The decision – makers
● Mediators writes the MOA which outlines in arbitration are called arbitrators. There
details of the solutions reached by the can be one arbitrator or multiple.
parties. ● Common in commercial disputes,
● Purpose: to have a written understanding of consumer and employment matters, family
the agreement between the parties. disputes or insurance claim.
● Each party should have their lawyer to
review the MOA. Advantages of Arbitration over Court Hearings
and Litigation
Ethical Conduct of Mediator ● Faster
● Competence ● More flexible
● Impartiality ● Less argumentative
● Confidentiality ● Less intimidating
● Consent and Self – Determination ● Less expensive
● Separation of mediation from Counseling
and Legal Advice PROCESS
● Charging Fees ● SUBMISSION – referring a dispute to an
● Promotion of Respect and Control of Abuse arbitrator.
Process ● HEARING – evidence and arguments are
● Solicitation or Acceptance of any Gift presented.
● JUDGEMENT – decision
Characteristics of Mediation * Arbitral Decisions (Awards)
● Promotes communication and cooperation. Any partial or final decision by an arbitrator
● Provides a basis for you to resolve disputes in resolving the issue or controversy.
on your own. ● Generally final and compulsory.
● Voluntary, informal and flexible. ● May be filed in court and enforced as if it
were a court judgement.
 ● Often take a long time to receive an ● Fast track Arbitration
arbitration award. Provide for shorter limits to ensure
the speedy resolution of disputes. Small
General Principles of Arbitration amount of disputes.
● The object is to obtain a fair resolution of
disputes by an impartial third party without Chapter II: Judicial Mediation and Litigation as
unnecessary expense or delay. modes of Dispute Resolution
● Parties should be free to agree how their
disputes are resolved, subject only to such Litigation
safeguards as are necessary in the public.  An action brought in court to enforce a
● Courts should not interfere. particular right.
 Act or process of bringing a lawsuit in and
Types of Arbitration of itself; a judicial contest;
● Domestic Arbitration  A contest authorized by law, in a court of
Within the country – RA 876, The justice, for the purpose of enforcing right.
Arbitration Law An act to authorize the
making of arbitration and submission Basic Concept of Litigation
agreements, to provide for the appointment  To prevent injustice, courts will restrain a
of arbitrators and the procedure for party from further litigation, by a writ of
arbitration in civil controversies, and for injunction;
other purposes.  A judicial writ, process or proceeding
● International Arbitration whereby a party is ordered to do or refrain
Between sovereign states that are from doing a certain act.
not settled by diplomatic negotiation or
conciliation are often referred, by agreement Characteristics of Litigation
of both parties, to the decision of a third  It is involuntary, the parties are mandated
disinterested party, who arbitrates the by law to appear in court.
dispute with binding force upon the  It is formal and structured.
disputant parties.  The parties are given equal rights to
● International Commercial Arbitration present their arguments.
Private parties engage in cross  The process is public.
border trade, often called “ international  The decisions are restricted.
business transactions”, the legal issues that  The parties have the right to appeal
arise fall within the larger concept of private  The losing party may pay the cost.
international law.
● Institutional Arbitration Advantages of Litigation
One that is administered by an  The proceedings and discussions become
institution agreed upon by the parties and part of public records and the final
conducted in accordance with that judgement is clear.
institution’s arbitration rules. May be referred  It is a two-way process – both parties are
to as administered arbitration. expected to perform their duties in litigation.
● Ad-hoc Arbitration  Discussions made in litigation become part
The parties and the arbitrators of jurisprudence as bases of deciding future
independently determine the procedure similar cases
without the involvement of an arbitral  Appeals can be either a pro or con. A
institution. An arbitration administered by an reviewer of the case may show clearer
arbitrator and/or the parties themselves. impartiality
  Stricker evidence – the discussions are
based on evidence not on speculations,
hearsays or conjectures
 It is a cost – effective option as summary
rules apply

Disadvantages of Litigation
 It is adversial
 There is less regard to fair solution
 The discussions made might not be
acceptable to either party
 This is disturbance of commercial
relationship
 Decisions made results in a win-lose
scenario and not a mutually acceptable
decision
 It is time consuming

STAGES
Stage 1: Convening the Mediation
Stage 2: Preparation
Stage 3: Opening Session
Stage 4: Communication
Stage 5: The negotiation
Stage 6: Closure