THE BASIC CONCEPT OF NEGOTIATION

Negotiation is a process in which two or more parties engage in discussions to reach a

mutually beneficial agreement. The basic concept of negotiation involves a give-and-take
approach where both parties make concessions to achieve a common goal.
The key elements of negotiation include:
Preparation: Before entering into a negotiation, it is essential to understand the issues at
hand, identify goals and interests, and be aware of potential strengths and weaknesses.
Communication: Effective communication is crucial during the negotiation process. This
involves actively listening to the other party, asking questions. and articulating one's own
position clearly.
Concessions: Negotiation involves making concessions or compromises in order to reach a
mutually acceptable agreement. It is important to understand what is most important and
what can be given up during the negotiation.
Creativity: A successful negotiation often requires creative thinking and problem-solving.
Parties may need to explore alternative solutions or consider new options to find a mutually
acceptable agreement.
Agreement: The negotiation process should result in a clear and mutually agreed-upon
outcome that meets the needs and interests of both parties.
THE BASIC CONCEPT OF ARBITRATION
Arbitration is a form of alternative dispute resolution (AD) in which parties in a dispute
agree to have a neutral third party, known as an arbitrator, hear their case and make a binding
decision. The basic concept of arbitration involves submitting a dispute to a private decision-
maker, rather than going to court.
The key elements of arbitration include:
Voluntary agreement: Both parties must agree to submit their dispute to arbitration. This
agreement may be made before a dispute arises or after a dispute has arisen.
Impartial arbitrator: The arbitrator is a neutral third party who is selected by the parties
or appointed by a court. The arbitrator's role is to hear the evidence and arguments presented
by each party and make a binding decision.
Informality: Arbitration proceedings are typically less formal than court proceedings, with
fewer rules of evidence and procedure. This allows for a more flexible and streamlined process.
Confidentiality: Arbitration proceedings are usually confidential, meaning that the details
of the dispute and the arbitration decision are not made public.
Binding decision: The arbitrator's decision is typically final and binding, meaning that the
parties must accept and comply with the decision. There are limited options for appeal or
review.
PROCESS OF ARBITRATION:
In the Philippines, the process of arbitration in dispute resolution typically follows these steps:
1. Agreement to Arbitrate: The parties involved must first agree to submit their dispute
to arbitration. This is usually done through an arbitration clause in a contract or
through a separate agreement.
2. Appointment of Arbitrator: The parties will agree on an arbitrator or a panel of
arbitrators to hear the dispute. If they cannot agree, they may seek assistance from an
arbitration institution or the court.
3. Preliminary Conference: Once the arbitrator is appointed, a preliminary conference
may be held to discuss the procedural aspects of the arbitration. such as the timetable
for submissions and the exchange of evidence.
 4. Submission of Evidence: The parties will then submit their evidence, including witness
statements, documents, and expert reports. The arbitrator may also request additional
evidence or information.
5. Hearing: A hearing will be held, where each party will have the opportunity to present
their case to the arbitrator. The hearing may include the examination and cross-
examination of witnesses and the presentation of oral arguments.
6. Award: After considering the evidence and arguments presented, the arbitrator will
issue an award. The award is binding on the parties and can only be challenged on
limited grounds.
7. Enforcement: The winning party may enforce the award through the courts, which will
treat the award as a final judgment.
The process of arbitration in the Philippines is governed by the Philippine
Alternative Dispute Resolution Act of 2004, as well as the rules of the chosen arbitration
institution, if any.

THE BASIC CONCEPT OF MEDIATION

Mediation - Is a voluntary process in which a mediator, selected by the disputing parties
facilitates communication and negotiation and assists the parties, in reaching a voluntary
agreement regarding a dispute.
The following are the characteristics of mediation;
Voluntary: Mediation is a voluntary process, meaning that the parties must agree to
participate and be willing to work towards a resolution.
Informal: Mediation proceedings are less formal than court proceedings, with more
flexibility in terms of the process and the evidence presented Neutral third party: The mediator
is a neutral third party who facilitates communication and negotiation between the parties.
The mediator does not make a decision or impose a solution on the parties.
Confidentiality: Mediation proceedings are confidential, meaning that the details of the
dispute and the mediation discussions are not made public.
Empowerment: Mediation is designed to empower the parties to find their own solutions,
rather than relying on a third party to make a decision.
Win-win approach: The mediator encourages the parties to work together to find a
mutually acceptable solution that meets their interests and needs.
Non-binding: The agreement reached in mediation is non-binding, meaning that the parties
are not legally required to follow through with the solution proposed by the mediator.
Cost-effective: Mediation can be a cost-effective alterative to litigation, as it typically
involves lower fees and expenses.
Time-efficient: Mediation can be a time-efficient altemative to litigation, as it typically
involves shorter proceedings than court cases.
STAGES OF MEDIATION
Many people think that mediation is an informal process in which a friendly mediator chats
with the disputants until they suddenly drop their hostilities and work together for the
common good. It doesn't work this way. Mediation is a multi-stage process designed to get
results. It is less formal than a trial or arbitration, but there are distinct stages to the mediation
process that account for the system's high rate of success.
Most mediations proceed as follows:
Stage 1 Mediator's opening statement. After the disputants are seated at a table,
the mediator introduces everyone, explains the goals and rules of the mediation, and
encourages each side to work cooperatively toward a settlement.
Stage 2 Disputants' opening statements. Each party is invited to describe the
dispute and its consequences, financial and otherwise. The mediator might entertain
general ideas about resolution, as well. While one person is speaking, the other is not
allowed to interrupt.
Stage 3 Joint discussion. The mediator might encourage the parties to respond
directly to the opening statements, depending on the participants* receptivity, in an
attempt to further define the issues.
Stage 4 Private caucuses. The private caucus is a chance for each party to meet
privately with the mediator. Each side will be placed in a separate room. The mediator
will go between the two rooms to discuss the strengths and weaknesses of each position
and to exchange offers. The mediator continues the exchange as needed during the
time allowed. These private meetings comprise the guts of mediation.\
Stage 5 Joint negotiation. After caucuses, the mediator might bring the parties back
together to negotiate directly, but this is unusual. The mediator usually doesn't bring
the parties back together until a settlement is reached or the time allotted for the
mediation ends.
Stage 6 Closure. If the parties reach an agreement, the mediator will likely put its
main provisions in writing and ask each side to sign the written summary of the
agreement. If the parties didn't reach an agreement, the mediator will help the parties
determine whether it would be fruitful to meet again later or continue negotiations by
phone.
 THE PRINCIPLES OF CONCILIATION

Impartial and Independence in nature. A conciliator should be impartial and shall

assist the parties in an independent manner and help the parties to reach an amicable
settlement of their disputes.
Just and Fair. The conciliator should be guided by principles of justice, fairness, and
objectivity and should give equal importance to other major factors like the rights of the
parties, circumstances, and reasons due to which the dispute arose.
Confidential. The conciliator can only disclose the necessary information to other parties
in regard to the settlement of the dispute.
Disclosure of the Information. The conciliator should disclose the fact of the other
party after receiving any facts regarding the dispute from one of the parties.
Co-operation with the conciliator. The parties should cooperate with the conciliator
and shall act in good faith.

COURT-ANNEXED MEDIATION (CAM)

AND
JUDICIAL DISPUTE RESOLUTION (JDR)
Court-Annexed Mediation (CAM) is a voluntary process conducted under the
supports of the court by referring the parties to the Philippine Mediation Center (PMC)
Unit for the settlement of their dispute, assisted by a Mediator accredited by the Supreme
Court.
Judicial Dispute Resolution (JDR) 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. In the event the JDR fails, then another judge (called the trial judge)
shall proceed to hear and decide the case.
 THE BASIC CONCEPT OF LITIGATION

Litigation refers to the process of resolving disputes by filing or answering a complaint

through the public court system.
Is a legal proceeding; it is essentially a process where someone is taking legal action
against something such as a lawsuit, legal case, and/or a judicial dispute.
The following are the basic concept of litigation:
1. Legal process.
2. Public
3. Time-consuming due to pre-trial, discovery, and appeals.
4. Can Appeal if not satisfied (lower court) with the judgment
5. Parties may be compelled to participate
6. The trial judge is assigned without input from the parties.
7. Very costly

LITIGATION PROCESS (Civil)

 CHARACTERISTICS OF LITIGATION
Form of Outcome in Litigation – the decision or judgment of the judge based on the law
and evidence presented by the parties. (Settlement, Dismissal)
Appeal - legal process to ask a higher court to review a decision by a judge in a lower court.
Indicators for Choice – based on law and depends on the evidence

 Enforcement of Decisions
 Speedy Resolution
 Special Knowledge of Dispute
 Cost minimization
 Confidentiality
 Judicial Intervention
 Public Hearing
 P0wer Imbalance

Operational Requirement

Technical Issues
 Applicable laws
 Statutory Procedures
 Preparations of statement of claims
 Examination and cross-examination
Time Issues

 Formal hearing and judgment

 Discovery Process
 Preliminary meeting
 Interlocutory meeting
Financial Issues

 Appointment of Costs
 Expert Witness
 Legal representation
 Security of costs and claims
 Venue for hearing
Summary of Procedures - the process of preparing and presenting a case in trial.
Role of Neutral- refers to the neutrality of the decision made by the judge.

RESTORATIVE JUSTICE VS. RETRIBUTIVE JUSTICE

Restorative Justice - is a type of justice in which remorseful offenders accept responsibility
for their acts, particularly in relation to their victims and the community.
Is also a legal philosophy that focuses on repairing the harm that criminal behavior
has caused.
FOUR KEY VALUES OF RESTORATIVE JUSTICE
1. Encounter - create opportunities for victims, and offenders’ community members who
want to do so to meet to discuss the crime and its aftermath.
2. Amends - expect offenders to take steps to repair the harm they have caused.
3. Reintegration - seeks to restore victims and offenders to the whole contributing
members of society.
 4. Inclusion - provides opportunities for parties with a stake in a specific crime to
participate in its resolution.
THREE FUNDAMENTAL PRINCIPLES OF RESTORATIVE JUSTICE
1. Justice requires that we work to restore those who have been injured.
2. Those who have been most affected by the crime should have the opportunity to
participate in its resolution.
3. It is the responsibility of both the government and society to keep the peace.
GOALS OF RESTORATIVE JUSTICE
1. Attending to the needs of victims.
2. Making the perpetrators genuinely answerable for their acts; and
3. Including the community in the judicial process.
OUTCOMES OF INTERVENTION MAY BE AGREED UPON BY PARTIES IN A
RESTORATIVE JUSTICE
1. Restitution
2. Community work service
3. Counselling
4. Attendance to training, seminars, and lectures
5. Participation in education, vocation, or life skills program
6. Group Therapy Session
7. Spiritual development session/faith-based session.
8. Submission to psychological/psychiatric assessment
9. Submission to drug test/drug dependency examination
10. Attendance to skills training/livelihood assistance program
11. Written or oral apology
12. Submission to a family therapy session
13. Confinement in drug treatment rehabilitation centers including aftercare.

Retributive Justice – This is a type of criminal justice that focuses on punishing offenders
and compensating victims. The severity of the penalty is generally proportional to the
magnitude of the crime.
Individuals should receive what they deserve according to their actions.
CORE PRINCIPLES OF RETRIBUTIVE JUSTICE
1. The person receiving the punishment must pay a price for it, endure difficulty, or lose
some benefit in some other way.
2. The harsh punishment must be administered on purpose by the punisher, not by
mistake or as a result of another action.
3. The punishment must be imposed in response to an act or omission

RESTORATIVE RETRIBUTIVE
Believe that crime is an act against both the Believes that crime is an act against the state,
victim and the community a breach of state morality, and a violation of
state law.

Focused on rehabilitation of the offender, A punishment that is appropriate and

victim healing, and reparation of the harm appropriate for the offense done.
caused.
Conducted through negotiation or Involves no such procedure focuses only on
mediation, usually involving the victim, the punishing the criminal
perpetrator, and the community

Focused on obtaining justice by having the Believes that when the wrong doer receives
aforementioned people involved. proper punishment, justice has been done.