Alternative Dispute Resolution for effective conflict management

1. OFFICE FOR ALTERNATIVE
DISPUTE RESOLUTION
STANDARD BASIC
ADR SKILLS TRAINING

2. M E D I A T I O N

3. Section 410. Procedure for Amicable Settlement. -
(b) MEDIATION BY LUPON CHAIRMAN - Upon receipt of the
complaint, the lupon chairman shall within the next working day
summon the respondent(s), with notice to the complainant(s) 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 the first meeting of the parties before him, he
shall forthwith set a date for the constitution of the pangkat in
accordance with the provisions of this Chapter.
Mediation Under the KP Law

4. What is “Mediation”?
- a voluntary process in which
a mediator, selected by
disputing parties, facilitates
communication and
negotiation, and assists the
parties in reaching a voluntary
agreement (Section 3 [q], RA 9285)

5. Why mediation?

6. Conflict Resolution Spectrum

8. Characteristics of Mediation
• Voluntary
 Private and confidential (Sections 9-11, RA 9285)
 Party control over process and outcome
(PARTY AUTONOMY - Section 2, RA 9285)
 Interest-based
 Enforceable outcome (Section 17, RA 9285; Article 2041, RA 386)
 Time saving and cost-effective
 Mutually satisfactory; preserves relationship

9. Mediation Process

10. MEDIATION PROCESS
S.P.A.
1.Opening STATEMENT of the Mediator
2.Opening STATEMENT of the Parties
3.Identifying the PROBLEM
4.PRIVATE Caucus
5.Generation of ALTERNATIVES
6.Drafting and Signing of the AGREEMENT

11. Step 1: Preparing for mediation
• Notifying parties of the schedule;
Ensuring presence of necessary parties
 Securing necessary authority
 Logistics

12. Step 2: Mediator’s Opening
Statement
• Introductions
• Process overview
• Purpose of mediation
• Mediator’s role
• Emphasis on party autonomy and
confidentiality
• Ground rules
• Need for separate meetings
(private caucuses)
• Willingness to go ahead

13. Step 3: Parties’ Opening
Statements
• Introductions
• Explanation of respective
positions/views taken
• Areas of disagreement
• Goals/objectives in
mediation

14. Step 4: Identifying the PROBLEM
• Summarizing the
opening statements
• Problem/issue
identification

15. Step 5: Private Caucus
• Only when necessary
• Benefits
• Confidentiality

16. Step 6: Alternatives
• Brainstorming/generation of alternatives
• Selection of possible solution(s)
• Improving/building on solution(s)
• Finalizing details of agreement

17. Step 7: Agreement
 Drafting settlement agreement
 Review and final revisions
 Signing of the agreement
 Closing statement:
(1) Acknowledge what they have accomplished;
and (2) Review the next steps in the compliance
with the agreement

18. MEDIATION
AS APPLIED IN KP
• Section 410. Procedure for Amicable Settlement
(b) Mediation by lupon chairman - Upon receipt of
the complaint, the lupon chairman shall within the
next working day summon the respondent(s), with
notice to the complainant(s) 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 the first meeting of
the parties before him, he shall forthwith set a date
for the CONSTITUTION OF THE PANGKAT in
accordance with the provisions of this Chapter.

19. MEDIATION
AS APPLIED IN KP
• Section 404. Pangkat ng Tagapagkasundo. -
(a) There shall be constituted for each dispute
brought before the lupon a CONCILIATION
PANEL to be known as the pangkat ng
tagapagkasundo, hereinafter referred to as the
pangkat, consisting of three (3) members who
shall be chosen by the parties to the dispute
from the list of members of the lupon.

20. MEDIATION
AS APPLIED IN KP
• INTEREST-based theory
• Similarities between Conciliation and
Mediation
• Applicability of Skills in Mediation in
Conciliation

21. Special Skills of the Mediator

22. Building Trust
 TRUST requires acceptance by the parties that the
Mediator is:
 Competent to facilitate the discussion effectively;
 Skillful in managing the process; and
 Able to communicate, maintain confidentiality,
question, build relationships, listen, analyze, identify
issues and generate options for mutual gain.
 During mediation, TRUST means the parties felt that the
Mediator is the right person to facilitate the discussion in
terms of competency, experience, expertise, standing and
personality.

23. IMPORTANCE of
BUILDING TRUST
• Parties are:
 More likely to share important
information;
 Less defensive;
 Able to state their needs;
 More willing to give and take in
negotiations;
 More accepting of the
mediator’s actions; and
 Better able to bridge the gaps
between them.

24. HOW TO BUILD TRUST
• Create a relaxed environment
• Make the parties understand the
process and your role as mediator
• Establish and maintain credibility
• Treat each party equally and with
respect

25. Changing Positions to Interests
POSITION INTEREST
What people say they want or
need
The reason(s) why people
want things
Identifies a person’s favoured
situation
Tells us what needs to be
addressed in order to reach
an agreement
May not address the needs
and/or concerns of others
Can be addressed in more
than one way
Mediator’s Role: To facilitate communication so that parties
are able to share their mutual interests.

26. The
immediate
source of
dispute
How people interpret
the other party's
behavior
Demands,
threats, fixed
solutions,
proposals, or
points of view
What really matters
to this person.
(Why is X a
problem?)
The topic the
parties need to
discuss and
decide.
Barking dog
The neighbor (dog
owner) is unfriendly
and inconsiderate.
Violates my privacy.
Buy a muzzle
I am not well, I need
my sleep. Want my
home to be a quiet,
private place
How to control the
barking dog at
night.
Unfair electric
bill
The electric company
wants to rip me off.
They think I am not
smart enough to
notice.
I will only pay for
the electricity I
know I consumed
for the month.
Want to be treated
fairly by the electric
company.
How to apply for a
new electric meter
without paying for
the electric
consumption of the
previous renter.
3 months
unpaid bill
Tenant is a freeloader.
Collect the
money due from
the customer.
Pay Php1,500.00
this month or electric
company will cut
service
Collect monthly
electric bill from
customer.

27. LISTEN FOR CUES ABOUT
PARTIES’ INTERESTS
• What matters to each person
• What they most hope to resolve
• The effect the problem has
• What issues are particularly hot
• Any common underlying themes
QUESTIONS TO
GET AT
INTERESTS
 What is important to you?
 What bothers you about the
situation?
 How does ____ affect you?
 It sounds like ____ matters to you a
lot.

28. Active Listening
• Quiet your mind and focus.
• Withhold judgment.

29. HOW TO ACTIVELY LISTEN
• Look at the speaker.
• Show that you are interested in what
he/she is saying.
• Lean slightly toward the speaker. Keep an
open, relaxed posture.
• Try to listen for what is not being said.
Observe HOW things are being said ---
emotions and attitudes behind the words
may be more important than talk.

30. Asking Questions
• To show that you’re listening
(especially at the early, trust-building stage)
• To gather and organize
information (particularly at the problem-
solving stage)
• To express in question form
what otherwise would be an
academic statement --- to
test reality
Question the intent
of your question.

31. POINTERS ON
ASKING
QUESTIONS
• Generally, questions should be open-ended.
Open-ended v. close-ended questions
• Avoid potentially problematic questions.
- Problem and past-focused questions
“What contributed to things getting this bad?”
- Rhetorical or pseudo questions
“Don’t you think forgetting the past is more useful?”
- Why questions
“Why didn’t you ask permission first?”
• Ask purposeful questions.

32. Giving Feedback
• To confirm that you’ve been listening
• To check that your perception of what you
think you heard/observed is right.

33. Reframing, Reflecting,
Restating
• Is restating what a
party has said to
capture the essence,
remove negative
overtones and move
the process forward.
• A way to translate a
positional statement
into a statement of
interests or needs.
Examples:
“hysterical” to
“crying”
"liar" to “ a person
who ‘disagreed’ or
‘sees differently’”

34. Summarizing
• Give an outline of what has been said.
• Highlight the important points of the narrative.
• Omit extraneous information.
Purposes:
 To gather and pull together
important facts
 To condense the feeling and
content of the speaker
 To establish basis for further
discussion
 To review progress

35. Observing Nonverbal Signs and Body Language
• Body language of
parties when they
entered the room and
how they respond to
each other
• Tone of voice
• Predominant’ emotion
portrayed in a party’s
posture and in their
gestures at key stages in
the mediation

36. Managing Impasse
• Convening
- involves effective convening by the mediator of all the concerned
parties, asking a lot of questions and being unafraid to push to better
understand all of the dynamics of the negotiation
• Preparation
Each person needs to know enough about the case so that they
can analyze settlement proposals and make informed decisions.
• Communication
Impasse results when there is failure at communication stage ---
the mediator may not have discovered or addressed a party's
underlying interests.

37. Managing Impasse
• Negotiation
Most of the rest of the reasons for impasse occur as a result of
the negotiation process. The primary reason for impasse here is the
mediator buying into the bluff.
• Agreement
One reason to be sure to write a settlement agreement at the
end of the mediation, even over the parties’ predictable resistance
after hours of difficult negotiation, is because the exercise of writing the
agreement forces the parties and/or their attorneys to focus on the
details of the agreement.

38. Special Skills of a Mediator
• Building the trust of the parties
• Changing positions to interests
• Active listening
• Asking appropriate questions
• Giving feedback
• Reframing, reflecting, restating
• Summarizing
• Observing non-verbal signs and body language
• Managing impasse