Republic of the Philippines

ISABELA STATE UNIVERSITY

Angadanan Campus

COLLEGE OF CRIMNAL JUSTICE EDUCATION

BACHELOR OF SCIENCE IN CRIMINOLOGY

Crim Prof 413: DISPUTE RESOLUTION AND CRISES/INCIDENTS MANAGEMENT

A. PRINCIPLES AND PHILOSOPHY OF RECONCILIATION, ARBITRATION,

NEGOTIATION, MEDIATION, THE COURT-ANNEXED MEDIATION AND JUDICIAL
MEDIATION, AND LITIGATION AS MODES OF DISPUTE RESOLUTION
(METHODS/TECHNIQUES/STRATEGIES OF RECONCILIATION, ARBITRATION,
NEGOTIATION AND MEDIATION)
Relevant terms
Dispute. A dispute is a disagreement, argument, or controversy—often one that gives rise to
a legal proceeding (such as arbitration, mediation, or a lawsuit). The opposing parties are said
to be adverse to one another.

Resolution. A resolution is a formal statement of opinion or a decision to take an action.

 In judicial proceedings, “resolution” means a judgment or decision of the court.
 In the context of a legislative practice, “resolution” is just a form in which a legislative
body expresses an opinion or a purpose with respect to a given matter or topic that is
temporary in nature. It denotes the adoption of a motion, the subject-matter of which
does not constitute a statute.
 In corporations, a corporate resolution is a written document containing authorization,
usually by a corporation's board of directors, documenting a binding decision made on
behalf of the corporation.

Modes of Dispute Resolution

Reconciliation comes from Latin reconcilio (I regain, recover, restore, reestablish, win back, I
bring together again, reunite, reconcile; conciliate; bring back), and later Latin reconciliatio
(Reconciliation. Reinstatement, restoration, renewal).

Daniel Herwitz, Humanities Professor from University of Michigan, who worked in South Africa
as a philosophy professor after receiving his Ph.D. thinks that the whole idea of reconciliation is
a Christian idea. The Christian reconciliation involves the acceptance of the Trinity (God, Jesus
and the Holy Spirit) as One.

Reconciliation. In the criminal justice context, reconciliation refers to the process of repairing
relationships between individuals or groups that have been harmed by criminal acts. It is
a restorative justice approach that seeks to address the harm caused by crime and promote
healing and forgiveness.

The criminal justice system has traditionally focused on punishing offenders, but this approach
often fails to address the needs of victims and their communities. Reconciliation seeks to
address this gap by focusing on the needs of the victim and the community, as well as the
offender.

Reconciliation involves a process of dialogue, negotiation, and healing. It seeks to provide a

safe and supportive environment in which victims and offenders can meet and discuss the harm
caused by the crime. The goal is to foster understanding and empathy between the parties,
promote healing and forgiveness, and develop a plan for repairing the harm caused by the
crime.

Reconciliation in the criminal justice context involves several key principles. These include:
a. the recognition of the harm caused by the crime. This involves acknowledging the
emotional, physical, and psychological impact of the crime on the victim and the
community. It also involves recognizing the harm caused to the offender, who may have
experienced trauma or other adverse effects as a result of their actions.
b. the need for accountability and responsibility. Offenders must take responsibility for their
actions and be held accountable for the harm caused by their crimes. This may involve
making restitution to the victim or the community, participating in community service, or
engaging in other forms of restorative justice.
c. the importance of community involvement. Community involvement is also critical to the
reconciliation process. Communities must be engaged in the process of healing and
restoration, and their input and participation must be valued and respected. This
involves recognizing the role of the community in preventing crime, promoting public
safety, and supporting victims and offenders.
d. the emphasis on healing and restoration. The emphasis on healing and restoration is
another critical principle of reconciliation in the criminal justice context. The focus is on
repairing relationships, promoting healing and forgiveness, and developing a plan for
repairing the harm caused by the crime. This may involve providing counseling or other
support services to the victim and the offender, as well as facilitating dialogue and
negotiation between the parties.

Burying the past in a reconciliatory way requires the mobilization of a variety of

methods/techniques/strategies. Most of them have to be activated in the short run:
1. healing the wounds of the survivors;
2. some form of retributive or restorative justice;
3. historical accounting via truth-telling; and
4. reparation of the material and psychological damage inflicted on the victims.

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 comes to English via the Latin word arbitrari, meaning "to judge."

The philosophy of arbitration follows that benefits should be centered rather than injuries, and
benefits received rather than benefits conferred; to be patient when we are wronged; to settle a
dispute by negotiation and not by force; to prefer arbitration to motion. For an arbitrator goes by
the equity of a case, a judge by the strict law, and arbitration was invented with the express
purpose of securing full power for equity (Dawson, J. G. (Ed.), 1948).

General principles of arbitration:

a. The object is to obtain a fair resolution of disputes by an impartial third party without
unnecessary expense or delay.
b. Parties should be free to agree on how their disputes are resolved, subject only to such
safeguards as are necessary in the public interest.
c. Courts should not interfere.

Methods/techniques/strategies for successful arbitration

 1. Draft a detailed and clear Arbitration Clause. A well drafted arbitration clause should
have:
 Enforceability.
 Number and qualifications of arbitrators.
 Time limit for passing an award.
 Arbitration costs.
 Phased Dispute Resolution Clause. Parties may prefer to firstly involve in
negotiations and/or mediations.
 Confidentiality.
 Scope of Dispute.
 Form of award.
 Governing law and rules.

2. Prepare and enforce budgets

3. Select the “Right” Arbitrator
4. Select experienced counsels and limit the motions
5. Limit the time and discovery of information
6. Conduct during the hearing: Efficient and Professional
7. Avoid appeal and settle the matter in Arbitration

Negotiation. From a psychological point of view, negotiation refers to any form of interaction in
which individuals with different and conflicting interests communicate and discuss what steps
they could take together to resolve the difference of opinion between them.

The word negotiation is derived from two Latin terms, negare otium; they translate literally as “to
deny leisure.” In French and Spanish, “deny leisure” becomes “business.” Yet, while the word is
Latin-derived, the behavior predates that culture by roughly 200,000 years, dating back to ever
since Homo sapiens developed as a species.

Fisher and Ury (1983) identified four fundamental principles of negotiation:

1. Be hard on the problem and soft on the person
2. Focus on needs, not positions
3. Be inventive about win-win options
4. Make clear agreements

Some negotiation methods/techniques/strategies:

 Be prepared and well informed with everything related to the deal.
 Be confident.
 Be very focused, specific and clear.
 Never keep things to yourself.
 Be a patient listener.
 Be realistic and logical.
 Don’t be in a hurry to close the deal.
 Know where to compromise.
 Communication is also important in negotiation.
 For a third party it’s always better to sign a contract or have something in black and
white so that no body backs out later.
Mediation. It is defined as the attempt to settle a legal dispute through active participation of a
third party (mediator) who works to find points of agreement and make those in conflict agree on
a fair result.

It is derived from Late Latin mediātiō (perhaps via Middle French mediation/mediacion)
from mediārī (“intervene”), from Latin medius (“middle”).

Mediation is, at its heart, assisted negotiation. The mediator provides a structure to the
negotiation that may enable the parties to reach a settlement that had proven elusive in prior
negotiations. By listening, questioning, and, occasionally but only occasionally, cajoling, in both
private sessions and joint sessions the mediator helps the parties determine what is possible
and what is not possible. the mediator sets the stage for the mediation by letting the parties
know that mediation is a controlled process where civility and confidentiality are taken very
seriously. Above all a mediation belongs to the parties that are involved. The mediator may help
guide them to an eventual settlement, but any conclusion is of their own making; the mediator
remains a facilitator.

Mediation proceeding are informal process in which the mediator, as a third party without the
power to decide or usually without enforcing a solution, helps the parties resolve a dispute or
plan a transaction. This proceeding is usually voluntary, confidential, transparent and time and
cost effective also.

Four principles of Mediation

1. Voluntary. Both parties have to want to mediate, and either of them can stop the
mediation process at any time. More and more the courts expect families to attempt
mediation before litigation begins, but mediation isn’t always suitable, and no-one can be
required to mediate.
2. Mediators are impartial. The mediator does not take sides, and is always there for both
of you. Mediators don’t give advice, although they do give information about legal
principles and guidance explaining what things you should be thinking about.
3. Confidential. The information clients share with the mediator is kept confidential, with
some very limited exceptions (similar to the exceptions that apply to lawyers, therapists
and counsellors). Proposals put forward during mediation cannot be referred to in court
proceedings. If you try to mediate but it doesn’t work, the court will never be told why the
mediation wasn’t successful.
4. The clients are in charge. The mediator doesn’t make any decisions; you yourselves
work out what proposals you both think you would like to take forward. Your proposals
will only become legally binding if you ask your lawyers to create a legally binding
agreement.

Mediation methods/techniques/strategies:
 communication skills;
 objectivity; and
 creativity.

Court-Annexed Mediation (CAM). It is a voluntary process conducted under the auspices 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.

The following cases shall be referred to CAM:

 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.

Judicial Dispute Resolution (JDR)/Judicial Mediation. It 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 following cases shall be referred to JDR by Judges in areas declared as JDR sites:
1. All cases which were not successfully settled in CAM;
2. All appealed cases from the exclusive and original jurisdiction of the First Level Courts:
a. over civil cases and probate proceedings, testate and intestate, under Section
33, paragraph (1) of the Judiciary Reorganization Act of 1980;
b. over cases of forcible entry and unlawful detainer under Section 33, paragraph
(2) of the Judiciary Reorganization Act of 1980;
c. over civil cases involving title to or possession of real property or an interest
therein under Section 33, paragraph (3) of the Judiciary Reorganization Act of
1980; and
d. over a habeas corpus case decided by the judge of the first level court, in the
absence of all the Regional Trial Court judges in the province or city, that are
brought up on appeal from the special jurisdiction granted to the first level courts
under Section 35 of the Judiciary Reorganization Act of 1980.

The following cases shall not be referred to CAM and JDR:

1. Civil cases which by law cannot be compromised, as follows:
a. The civil status of persons;
b. The validity of a marriage or a legal separation;
c. Any ground for legal separation;
d. Future support;
e. The jurisdiction of courts; and
f. Future legitime.
2. Civil aspect of non-mediatable criminal cases;
3. Petitions for Habeas Corpus;
4. All cases under Republic Act No. 9262 (Violence against Women and Children); and
5. Cases with pending application for Restraining Orders/Preliminary Injunctions.

However, in cases covered in numbers 1, 4 and 5 where the parties inform the court that they
have agreed to undergo mediation on some aspects thereof, e.g., custody of minor children,
separation of property, or support pendente lite, the court shall refer them to mediation.

The mediation fee is the amount collected by the Clerk of Court from the filing of civil cases and
private complainant in criminal cases.
Mediation fund is the totality of the mediation fees, receipted and separated as a special fund,
known as the SC-PHILJA-PMC Mediation Trust Fund, which is managed by the Philippine
Judicial Academy (PHILJA), subject to accounting and auditing rules and regulations.

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).
 6. 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).

The Fund shall be used for:

1. Establishment of Philippine Mediation Center (PMC) Units;
2. Training seminars/ workshops/ internship programs for Mediators;
3. Payment of Mediators’ Fees;
4. Compensation of the PMC Unit Staff;
5. Payment of operating expenses;
6. Advocacy and promotion of court-annexed mediation and other relevant modes of ADR;
and
7. Such other expenses as authorized by Section 9, Rule 141 of the Rules of Court.

Litigation. It is the method of settling disputes before the court. This includes filing a lawsuit,
going through courtroom trials, appeals, and more.

It means "act of carrying on a lawsuit," 1640s, from Late Latin litigationem (nominative litigatio),
noun of action from past-participle stem of Latin litigare "to dispute, quarrel; sue, go to court,"
from phrase litem agere "to drive a suit," from litem (nominative lis) "lawsuit, dispute, quarrel,
strife" (which is of uncertain origin) + agere "to set in motion, drive forward" (from Proto-Indo-
European (PIE) root *ag- "to drive, draw out or forth, move"). The word was earlier in English in
a now obsolete sense "disputation" (1560s). Other legal terms in English from
Latin lis included litiscontestation (15c.), litispendence (17c.).

Process of litigation
All criminal actions are commenced either by a complaint or by an information (Rev Rules of
Crim Procedure, Rule 110, s 5). A complaint is a sworn written statement charging a person
with an offence, subscribed to by the offended party, any peace officer or other public officer
charged with the enforcement of the law violated (Rule 110, s 3). An information is an
accusation in writing charging a person with an offence subscribed to by the fiscal and filed with
the court (Rule 110, s 4). No complaint or information for an offence recognizable by the
Regional Trial Court can be filed without a preliminary investigation having been first conducted
by a judge, provincial city prosecutor or a state prosecutor in order to determine if a prima facie
case is established by the evidence presented by both parties (Rule 110, s 5, 1st par). The
complaint or information shall state the designation of the offense given by the statute, aver the
acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances which shall be stated in ordinary and concise language (Rule 110, ss 8 & 9). No
complaint or information may be filed or dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or city prosecutor or chief state prosecutor
and such resolution is appealable to the Secretary of Justice (Rule 112, s 4).

A preliminary investigation is required to be conducted before the filing of a complaint or

information for an offense where the penalty prescribed by law is at least 4 years, 2 months and
one day without regard to the fine (Rev Rules of Crim Procedure, Rule 112, s 1).

In all criminal prosecutions, the accused is entitled to the following:

1. to be presumed innocent until the contrary is proved;
2. to be present and be defended either in person or by an attorney at every stage of the
proceedings, that is, from the arraignment to the promulgation of the judgment;
3. to be informed of the nature and cause of the accusation;
 4. to testify as witness on his own behalf;
5. to be exempt from being a witness against himself;
6. to confront and cross-examine the witness against him at the trial;
7. to have compulsory process issued to secure the attendance of witnesses in his behalf;
8. to have an expeditious and public trial; and
9. to have the right of appeal in all cases authorized by law (Constitution (1987), art III, s
14(2); Id, Rule 115).

The 1987 Constitution requires that any person under investigation for the commission of an
offence shall have the right to be informed of his right to remain silent and to have competent
and independent counsel, preferably of his own choice. If the person cannot afford the services
of counsel, he must be provided with one. These rights cannot be waived, except in writing and
in the presence of counsel (Article III, s 12(1)). It also provides that an confession obtained
through torture, force, violence, threat, intimidation or any other means which vitiates the free
will shall be inadmissible in evidence (Article III, ss 12(1) & (2), as implemented by Rep Act No
7438 (1992)).

Arrest and Detention

A person can only be arrested when there is a warrant or order for his arrest, except in certain
instances (Rev Rules of Crim Procedure, Rule 113, s 2; Rule 113, Art III, s 2 of the
Constitution). No violence or unnecessary force shall be used in making an arrest. The person
arrested shall not be subject to a greater restraint than is necessary for his detention (Rule 113,
s 2, 2nd par). Secret detention places, solitary, confinement, being held incommunicado, or
other similar forms of detention are prohibited (Article III, s 12(2)). The employment of physical,
psychological, or degrading punishment against any prisoner or detainee, or the use of
substandard or inadequate penal facilities shall be dealt with by law (Const, Art. III, s 19(2)). No
person may be detained solely by reason of his political beliefs and aspirations (Const, Art III, s
8(1)). Likewise, the 1987 Constitution specifies that the law shall provide for penal and civil
sanctions for violations of sections 12 and 17 of Article III as well as compensation to and
rehabilitation of victims of torture or similar practices, and their families.

Pre-Trial
To abbreviate court proceedings, ensure prompt disposition of cases and decongest court
dockets, the Supreme Court laid down in Administrative Circular No 3-99 dated 15 January
1999 the following guidelines for the observance of trial judges and clerks of court:
1. Before arraignment, the Court issues order directing the public prosecutor to submit the
record of the preliminary investigation to the Branch Clerk of Court. When the accused is
under preventive detention, his case shall be raffled within 3 days from the filing of the
complaint. The accused is arraigned within 10 days of the raffle and the pre-trial of his
case within 10 days from arraignment unless a shorter period is provided by law (Rev
Rules of Crim Procedure, Rule 116, s 1, as amended).

2. After arraignment, the Court sets the pre-trial conference within 30 days of arraignment
and issues an order: (a) requiring private offended party to appear thereat for purposes
of plea bargaining except for violations of the Comprehensive Dangerous Drugs Act of
2002 and other matters requiring his presence;(Rev Rules of Crim Procedure, Rule 118,
s 1). (b) referring the case to the Branch Clerk of Court, if warranted, for a preliminary
conference to be set at least 3 days prior to pre-trial to mark documents or exhibits
presented by parties and consider other matters that may aid in its prompt disposition;
and (c) informing the parties that no evidence shall be allowed to be presented and
offered during the trial other than those identified and marked during pre-trial except
 when allowed by the court for good cause. In mediation cases, the judge shall refer
parties and their counsel to the Philippine Mediation Center unit for purpose of
mediation, if available.

3. During the preliminary conference, the Branch clerk of Court assists the parties in
reaching a settlement of the civil aspect of the case; marks the documents to be
presented as exhibits after comparison, ascertains from the parties the undisputed facts
and admissions on the genuineness and due execution of the documents marked as
exhibits. The proceedings here shall be recorded in the minutes to be signed by both
parties and counsel.

4. During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act of
2002, the trial judge must consider plea-bargaining agreements (AM No 03-1-09-SC).
Where the prosecution and the offended party agree to the plea offered by the accused,
the court shall: (a) Issue an order which contains the plea bargaining arrived at; (b)
proceed to receive the evidence on the civil aspect of the case; and (c) render and
promulgate judgment of conviction, including the civil liability or damages duly
established by the evidence.

When plea bargaining fails, the Court scrutinizes every allegation in the information and
documents identified and defines the factual and legal issues. The specific trial dates are set. All
proceedings during the pre-trial are recorded and reduced in writing and signed by the accused
and counsel, otherwise, they cannot be used against the accused. The minutes and the
transcripts of the proceedings shall be signed by the parties and/or their counsels. A pre-trial
order is also issued by court within 10 days after the termination of the pre-trial setting forth the
facts stipulated, admissions made, evidence marked, the number of witnesses to be presented
and the schedule of trial (1997 Rules of Civil Procedure, Rule 13, s 7; Rev Rules of Crim
Procedure, Rule 118, s 4).

Arraignment and Trial

The defendant must be arraigned before the court where the complaint or information has been
filed or assigned for trial (Rev Rules of Crim Procedure, Rule 116, s 1(a)). The defendant must
be present at the arraignment and must personally enter his plea. Both the arraignment and
plea must be recorded, but a failure to enter a record of them does not affect the validity of
proceedings (Rule 116, s 1(b)). If the defendant refuses to plead, or makes a conditional plea of
guilty, a plea of not guilty shall be entered for him (Rule 116, s 1(c)).

All persons are, before conviction, bailable by sufficient sureties, except those charged with
capital offences if evidence of their guilt is strong. The right to bail is not impaired even when the
privilege of the writ of habeas corpus is suspended (Const, Art III, s 13; Rev Rules of Crim
Procedure, Rule 114). After arraignment, trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his failure to appear is justified (Const, Art.
III, s 14(2)). If the defendant appears without an attorney, the court must appoint a counsel de
officio to defend him (Rev Rules of Crim Procedure, Rule 116, ss 6-8).

The trial then proceeds if the defendant has entered a plea of not guilty. Once commenced, the
trial continues from day to day, as far as practicable, until it is concluded. It may also be
postponed for a reasonable period of time for good cause. The Court shall, after consultation
with the prosecutors and defense counsel, set the case for continuous trial on a weekly or other
short-term trial calendar at the earliest possible time but in no case shall the entire trial period
exceed 180 days from the first day of trial (Rev Rules of Procedure, Rule 119, s 2). The trial is
then followed by a written judgment which is promulgated by reading it in the presence of the
defendant and the judge who rendered it (Rules 119 & 120). At any time before judgment of
conviction becomes final, the court may grant a new trial or reconsider its own instance, with the
consent of the accused or on motion of the prosecution. Either party may appeal from a final
judgment or ruling or from an order made after judgment affecting the substantial rights of the
defendant, but the prosecution cannot appeal if the defendant would thereby be placed in
double jeopardy (Rule 121, s 2. See also CONST, Art III, s 21). If the death penalty is imposed,
the case is automatically elevated to the Supreme Court, whether the defendant has appealed
or not (Rule 122).

B. RESTORATIVE AND RETRIBUTIVE JUSTICE.

What is Restorative Justice?
Restorative Justice is a process through which remorseful offenders accept responsibility for
their misconduct, particularly to their victims and to the community. It creates obligation to make
things right through proactive involvement of victims, ownership of the offender of the crime and
the community in search for solutions which promote repair, reconciliation and reassurance.
Thus, the restorative justice process is actively participated in by the victim, the offender, and/or
any individual or community member affected by the crime to resolve conflicts resulting from the
criminal offense, often with the help of a fair and impartial third party. Examples of restorative
process include mediation, conferencing, sentencing/support circle and the like. The restorative
outcome is the agreement obtained as a product of a restorative justice process. Examples of
restorative outcomes include restitution, community work service and any other program or
response designed to accomplish reparation of the victim, and the reintegration of the victims
and/or offenders.

How was Restorative Justice Adopted in the Philippines?

The Commission on Crime Prevention and Criminal Justice, of which the Philippines is a
member-country, through a draft resolution, recommended to the Economic and Social Council
of the United Nations Organization (UNO), the adoption of the “Basic Principles on the Use of
Restorative Justice Programmes in Criminal Matters”. The said document is a formulation of UN
Standard in the field of mediation and restorative justice. The Philippines, being a signatory
member-country should ensure adoption of this resolution.

Consequently, the goal of the government is to establish a more enlightened and humane
correctional system that will promote the reformation of offenders and thereby reduce the
incidence of recidivism. This is in line with the applicable laws, rules, and policies mandating this
Agency to administer the Parole and Probation System in the country. As such, the Parole and
Probation Administration (PPA) is empowered to create innovative policies, programs, and
activities to facilitate the reintegration of its clientele into the mainstream of society and
consequently prevent the commission of crime. Therefore, PPA adopts Restorative Justice as
one of its rehabilitation programs which utilizes restorative processes and aims to achieve
restorative outcomes.

Effects of Restorative Justice as a Rehabilitation Program of PPA

1. Reintegration of the offenders to the social mainstream and encouraging them to
assume active responsibility for the injuries inflicted to the victims;
2. Proactive involvement of the community to support and assist in the rehabilitation of
victims and offenders;
3. Attention to the needs of the victims, survivors and other persons affected by the crime
as participating stakeholders in the criminal justice system, rather than mere objects or
 passive recipients of services of intervention that may be unwanted, inappropriate or
ineffective;
4. Healing the effects of the crime or wrongdoing suffered by the respective stakeholders;
and
5. Prevention of further commission of crime and delinquency.

Implementation of Restorative Justice in PPA

A. During the Investigation Stage
Information such as victims’ version of the offense, effect of victimization to their lives, families,
future, and plans, and victims’ appreciation on how the damage/harm inflicted by the crime can
be repaired and healed are gathered to serve as input in the post-sentence investigation (PSI)
or pre-parole/executive clemency investigation (PPI) reports prepared by the investigating
officer to be submitted to the Court and the Board of Pardons and Parole, respectively. These
data are vital in the conduct of restorative justice processes during the supervision phase.
Soliciting stakeholders’ interest for their introduction to the restorative process commences
during this stage.

B. During the Supervision Stage

Restorative Justice Program is a part of the rehabilitation of the client which is incorporated in
the client’s Supervision Treatment Plan (STP). In applying the various restorative justice
processes for the client’s rehabilitation, the supervising officer observes the following points:
 The parties are brought within the program out of their own volition. Parties have the
right to seek legal advice before and after the restorative justice process;
 Before agreeing to participate in the restorative justice process, the parties are fully
informed of their rights, the nature of the process, and the possible consequences of
their decision;
 Neither the victim nor the offender is induced by unfair means to participate in
restorative justice processes or outcomes;
 Discussion in restorative justice processes should be highly confidential and should
not be disclosed subsequently, except with the consent of the parties, and should not
be used against the parties involved;
 Where no agreement can be made between the parties, the case is withdrawn from
the restorative justice process; and
 In the event agreement is reached by parties, it is put in writing to give
substance/essence to the agreement. The failure to implement any provision of the
agreement made in the course of the restorative justice process is a basis for the
withdrawal of the case from the program.

Roles of the Probation and Parole Officers in the Implementation of Restorative Justice
A Probation and Parole Officer assigned to handle investigation and supervision caseloads acts
as restorative justice planner. As such, he/she undertakes the following responsibilities:
1. Identifies and recommends to the Chief Probation and Parole Officer (CPPO) potential
case for Peacemaking Encounter;
2. Conducts dialogue to explore the possibility of restorative justice process;
3. Coordinates/collaborates with responsible members and leaders of community for their
participation in the conference;
4. Serves as facilitator-strength in the conference;
5. Assists in healing process of stakeholders based on the Supervision Treatment Plan;
and
 6. Prepares casenotes reflective of restorative justice values and utilizing the following
points:
7. Impact of crime and effect of victimization
8. Victim inputs and involvement opportunities
9. Offender opportunity to take direct responsibility for the harm inflicted on the victim
and/or the community.

A CPPO engages in the following responsibilities:

1. Approves cases for Peace Encounter Conference and issues office orders; and
2. Implements and monitors plans and agreements achieved during the conference and
sets direction to realize success of the process.

Procedural Safeguards to be observed in applying the Restorative Justice Processes to

Resolve Conflicts arising from the Criminal Offense
1. The clients must admit the offense to be eligible for the conference, and if possible, they
should be encouraged to take full responsibility;
2. A personal visit by the Restorative Justice planner may be necessary to solicit interest
and willingness of stakeholders to participate in the restorative process;
3. The victims’ preference for the time, date and place of the meeting should be given
greatest weight;
4. Restorative Justice planners should also get in touch with community strengths to serve
as facilitator like local officials, members of the Lupon Tagapamayapa or any
responsible and respected personalities in the locality;
5. A pre-conference meeting with the selected facilitators prior to the actual conduct of
peace encounter conference should be set to carefully plan for all the details, from the
sitting arrangements and refreshments to the box of tissue papers which incidentally
would let participants know that display of emotions is okay;
6. A pre-conference meeting could likewise be arranged separately with individual
stakeholders to explain the process and other vital details of the conference;
7. The Restorative Justice planner should ensure that everyone knows how to get to the
location site of the conference;
8. Facilitators should ensure that the conference shall be conducted without interruption in
a comfortable location and shall secure the safety of all stakeholders;
9. Stakeholders shall also be consulted relative to the composition of the panel of
facilitators. Any party may move to oppose the inclusion of persons by reason of
relationship, bias, interest or other similar grounds that may adversely affect the process;
and
10. Indigenous system of settling differences or disputes shall accordingly be recognized
and utilized to conform with the customs and tradition of that particular cultural
community.

Restorative Justice Models that can be applied in PPA

Peacemaking Encounter
Peacemaking Encounter is a community-based gathering that brings the victim, the victimized
community, and the offender together. It supports the healing process of the victims by
providing a safe and controlled setting for them to meet and speak with the offender on a
confidential and strictly voluntary basis. It also allows the offender to learn about the impact of
the crime to the victim and his/her family, and to take direct responsibility for his/her behavior.
Likewise, it provides a chance for the victim and the offender to forge a mutually acceptable
plan that addresses the harm caused by the crime.
As a community-based decision model, the Agency Peacemaking Encounter is being
implemented through the following processes:
1. Victim/Offender Mediation – a process that provides an interested victim an opportunity
to meet face-to-face his/her offender in a secured and structured setting or atmosphere,
with the help of a trained mediator, and engage in a discussion of the past offense and
its impact to his/her life. Its goal is to support the healing process of the victim and allow
the offender to learn the impact of his/her offense on the victim’s physical, emotional and
financial existence, and take direct responsibility for his/her behavior by mutually
developing a Restorative Justice plan that addresses the harm caused by the said
offense.

2. Conferencing – a process which involves community of people most affected by the

crime – the victim and the offender and their families, the affected community members
and trained facilitators and community strength – in a restorative discussion of issues
and problems arising from an offense or coincidence which affects community
relationship and tranquillity. Facilitated by a trained facilitator, the above parties are
gathered at their own volition to discuss how they and others have been harmed by the
offense or conflict, and how that harm may be repaired and broken relationship may be
restored.

3. Circle of Support – a community directed process organized by the field office and
participated in by the clients, the Volunteer Probation Aides (VPAs) and selected
members of the community in the discussion of the offense and its impact. Within the
circle, people freely speak from the heart in a shared search for understanding the
incident, and together identify the steps necessary to assist in the reconciliation and
healing of all affected parties and prevent future crime or conflict.

In the Agency, the circle of support is facilitated by trained Probation and Parole Officers,
Volunteer Probation Aides or selected community leaders who offered their services free of
charge to serve as facilitator or keeper.

In implementing this process, the probation and parole officer should be the facilitator who is
sensitive to the needs of the victim. Likewise, the probation and parole officer should exert effort
to protect the safety and interest of the victim.

Outcomes or Interventions which can be agreed upon during the Restorative Justice
Process
As a result of the restorative justice process, the following outcomes or interventions may be
agreed upon by parties in a Restorative Justice discussion, such as, but not limited to:
A. Restitution
Restitution is a process upon which the offender accepts accountability for the financial and/or
non-financial losses he/she may have caused to the victim. Restitution is a “core” victim’s right
which is very crucial in assisting the redirection of the victim’s life. Part of the conditions of
probation as imposed by the Court is the payment of civil liability to indemnify the victim of the
offender, and to inculcate to the offender a sense of responsibility and obligation towards the
community.

Consequently, the probation and parole officer should see to it that the offender complies with
this condition.

B. Community Work Service

Community Work Service, whether imposed as a condition of offender’s conditional liberty or
integral part of his treatment plan, should be purposely motivated to make the offender realize
that he/she incurred an obligation to make things right. In its application, the offender can be
subjected to perform work service measures, including, but not limited to any of the following:
1. Mentoring and Intergenerational Service – offenders will develop their nurturing
needs thru caring for other people; example: with senior citizens, with orphanages, or
with street children.

2. Economic Development – to link directly with the business project; examples:

cleaning downtown area, tree planting, maintenance of business zones, housing
restoration, garbage and waste management, cleaning of esteros, recycling,
construction, repair of streets, and the like.

3. Citizenship and Civic participation-experiential activities which involve solving

community problems; examples: puppet shows that showcase values, street dramas,
peer counseling.

4. Helping the Disadvantaged – this will enhance offender’s self esteem; examples:
assist handicapped, assist in soup kitchen, tutor peers, visit the aged in jail and
hospitals.

5. Crime Prevention Project – examples: Brgy. Ronda, giving testimony to the youth.

The probation and parole officer should ensure the adoption of these community work services
to facilitate the reintegration of the offender in the community.

C. Counseling (whether individual, group or family). It will enhance client’s interpersonal

relationship and it will help him/her become more aware of his/her
shortcomings/weaknesses. This will also help him/her overcome painful experiences
that drove him/her to commit a crime/ offense.

D. Attendance to trainings, seminars and lectures

E. Participation in education, vocation or life skills program
F. Group Therapy Session. An intervention which provides recovering drug dependents or
those with serious behavioral problems an opportunity to discuss their problems.
G. Spiritual development session/faith-based session
H. Submission to psychological/psychiatric assessment
I. Submission to drug test/drug dependency examination
J. Attendance to skills training/livelihood assistance program
K. Marital enhancement program
L. Written or oral apology
M. Submission to family therapy session. This session aims to develop healthy personal
relationship within the family and to establish open positive communication between
family members and significant others. Family members should be oriented in their
individual responsibilities and roles.
N. Confinement in Drug Treatment Rehabilitation Center Including Aftercare

What is Retributive Justice?

Retributive justice is defined as a form of justice that is committed to giving wrongdoers
punishments that are proportionate to their crimes. Retribution, meaning ''repayment'', comes
from the Old French retribution, retribucion and also directly from the
Latin retibutionem meaning ''recompense, repayment''. The root Latin word, tribution means ''I
pay back''. Modern use has restricted the word to the meaning ''evil given for evil done''. It is the
belief that individuals should receive what they deserve according to their actions. Retribution
law is therefore defined as a law system that is focused on retributive justice as the main
method of resolving cases.

Retribution in Criminal Justice

Retribution in criminal justice has played a major role in the use of punishment as a form of case
resolution. This form of justice was explored in detail by 18th-century Immanuel Kant, who
believed that his retributive theories of justice were logical and reasonable. He argued that
punishment by coercion of force is key in establishing justice and effectively punishing criminals
in order to prevent future crimes. According to Kant, punishment by the court is ineffective if it
focuses on promoting some good to the criminal or their community, and it is necessary for the
punishment to emphasize the fact that a crime has been committed. This theory of justice
places emphasis on seeking justice for what the criminal has done, rather than achieving some
other goal.

Factors in deciding punishment in Retributive Theory

Retributive theory views punishment as a way to bring justice to an injustice, both for the
wrongdoer and the victim. This theory holds that punishment is a necessary moral good for all
parties involved in a crime. There are several elements of punishment that are considered key
in retributive theory.
 First, the punishment must impose a cost or hardship on the person being punished or at
least take away some benefit.
 Second, the punisher must inflict the hard punishment intentionally, not as an accident or
side-effect of something else.
 Third, the punishment must be imposed in response to an act or omission.
 Fourth, the act or omission question has to have been harmful or wrong in nature.
 Fifth, the punishment should be thought of as a way of condemning what is believed to
be a harmful act or omission, ensuring the punishment is morally justifiable. At its core,
retributive punishment seeks to punish wrongdoers in a way that not only creates
retributive payback for the crime, but also deters others and shows the community that
justice has been served.

Punishment fits the crime

Those in favor of retributive justice argue that punishment is needed for certain crimes because,
without it, would-be criminals will not be deterred from committing said crime and wrongdoers
will continue unchecked. For example, a man named Nicholas has murdered his wife, Sherry. If
he goes to trial for his crime yet is not punished, a few things may happen. Nicholas may think
that he can easily get away with killing other people he does not like. Members of his community
may think that they, too, could get away with murdering or at least severely injuring others that
they don't like. In fact, members of the community (including Nicholas) may begin to believe that
lesser crimes, like robbery and sexual assault, are allowable because the highest crime results
in no punishment. When a criminal receives no punishment for a serious crime, the criminal
himself and his community see that their bad actions have no consequences and may choose to
continue or escalate those actions.

Difference between retributive justice and restorative justice:

Retributive Justice Restorative Justice
Here crime is viewed mainly as an act Crime is viewed as an act against another
against the state, a violation of a law. person and the community.
Here the main argument is that, threats of Punishment alone is not effective in changing
punishment deter crime and punishment behaviour and is disruptive to community
changes behaviour. harmony and good relationships.
Crime is an individual act with individual Crime has both individual and social dimensions
responsibility. of responsibility.
Focus on establishing blame or guilt, on the Focus on the problem solving, on
past (did he/she do it?). liabilities/obligations, on the future (what should
be done?)
Emphasis on adversarial relationship. Emphasis on dialogue and negotiation.
Imposition of pain to punish and Restitution as a means of restoring both parties;
deter/prevent is the main tool of justice. goal of restoration is a major focus.
Community on sideline, represented Community as facilitator in restorative process.
abstractly by state.
Response focused on offender’s past Response focused on harmful consequences of
behaviour. offender’s behaviour and emphasis is on the
future.
Offender accountability defined in term of Accountability is defined as assuming
punishment. responsibility and taking action to repair harm.
The criminal justice system controls the Crime control lies primarily in the community.
crime.
Retributive justice focuses on punishing an Restorative justice focuses on repairing the
offence. harm caused by the crime.
Retributive justice is characterised by Restorative justice is characterised by dialogue
adversarial relations among the parties. and negotiation among the parties.
Retributive justice assumes that state or Restorative justice assumes that community
government play a more active role than members or organizations play a more active
community. role.