LEARNING MATERIAL IN DISPUTE RESOLUTION AND CRISES/INCIDENTS MANAGEMENT

PRINCIPLES AND PHILOSOPHIES OF THE DIFFERENT MECHANISMS IN

RESOLVING CONFLICTS/DISPUTES

Lesson 1 CONCEPT OF CONFLICT

Whenever two individuals opine in different ways, a conflict arises. In a layman’s language
conflict is nothing but a fight either between two individuals or among group members. No two
individuals can think alike and there is definitely a difference in their thought process as well as their
understanding. Disagreements among individuals lead to conflicts and fights.
Conflict arises whenever individuals have different values, opinions, needs, interests and are
unable to find a middle way.

For you to understand conflict in a better way

The dissimilarity in the interest, thought process, nature and attitude of Tim and Joe gave rise to a conflict
between the two.

For Example:
Tim and Joe were working in the same team and were best of friends. One fine day, they were asked
to give their inputs on a particular project assigned to them by their superior.
There was a major clash in their understanding of the project and both could not agree to each other’s
opinions. Tim wanted to execute the project in a particular way which did not go well with Joe. The
outcome of the difference in their opinions was a conflict between the two and now both of them just
can’t stand each other.

✓ The word conflict comes from Latin “conflingere” means to come together for a battle. Conflicts can either
be within one person, or they can involve several people or groups.
✓ Conflict is defined as a clash between individuals arising out of a difference in thought process, attitudes,
understanding, interests, requirements and even sometimes perceptions.
✓ A conflict is a struggle between people. The struggle may be physical, or between conflicting ideas.

CONFLICT THEORY
- Created by Karl Marx, the father of communism.
- Society is broken up into two groups, a controlling (dominant) group and an oppressed group.
- Conflict between groups is normal & happens because of scarcity.
- With this theory resources is not just tangible like goods, it can be power, time and all other concepts
that are not tangible. It is important to remember while looking at this theory and when applying it to a
society.
- Karl Marx believe that the theory is existed in every aspect of the society (macro-level) – looking at
the society as a whole.

For you to understand conflict theory read the text below:

This theory views that dominant groups are blind. What it means is that dominant group will plant their
seed of destruction. It really does what boil down to be the dominant group wouldn’t understand that they are
doing something wrong or they are oppressing someone. That they were given advantages that different
group wasn’t because they weren’t exposed to it. They didn’t have these life experiences that show them the
view of reality. On the other hand, oppressed group was constantly reminded of what they are lacking, of how
they are unequal, how the other group is more privilege & more have resources and they are the enemy per
se.
Now what eventually happen then is enough people will get frustrated with the dominant group and
oppressed group would rise up to take control. Then the old dominant group would be the new oppressed group,
they have lost something. The cycle starts.

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For example:

Educational System (College) Low income class/

Wealthy/ upper
working class
and middle class
(oppressed group)
(Controlling/
dominant group)
Conflict arises
- more - lack of
when people
opportunity to go opportunity to go
get frustrated
college college
that certain
-have the opportunities in -lack of resources
resources for our society are for their education
their education not open to
them because - didn’t go to
-quality school in they believe quality school in
preparation for that they have preparation for
college less and not college
able to access
college

CYCLE OF CONFLICT

PERSPECTIVES RELATED TO CONFLICT THEORY

✓ Critical theory - critical theorists maintain that a primary goal of philosophy is to understand and to help
overcome the social structures through which people are dominated and oppressed.
✓ Feminist theory - an approach that recognizes women’s political, social and economic equality to men.
✓ Postmodern theory - an approach that is critical of modernism, with a mistrust of grand theories and
ideologies
✓ Post-structural theory - grounded in the concept of overdetermination. Overdetermination as an
epistemology implies the absence of a break between discourse and the objects of discourse. It implies
that theory is not separate from reality nor is reality separate from theory. We SEE what we are TAUGHT
to see in the concepts we LEARN. The concepts we LEARN are complexly shaped by the stream of
reality of which we are elements.
✓ Post-colonial theory - is the critical academic study of the cultural legacy of colonialism and imperialism,
focusing on the human consequences of the control and exploitation of colonized people and their lands
✓ Queer theory - a growing body of research findings that challenges the heterosexual bias in Western
society.
✓ World systems theory - is an approach to world history and social change that suggests there is a world
economic system in which some countries benefit while others are exploited.
✓ Race Conflict Approach - a point of view that focuses inn equality and conflict between people of different
racial and ethnic categories.

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PHASES OF CONFLICT

PHASE 1 may be associated with being happy. This phase is often what our culture focuses most on attaining
but it is only a temporary state. In Phase 1, we don’t seem to have problems, disagreements or tensions.

PHASE 2 is what many people identify as conflict. In Phase 2, the tension surfaces. arguments, disagreements,
frustrations, etc… arise here. We tend to lose sight of the phases that precede and follow this phase of tension
and upset. When you are stuck in Phase 2, you may want to get some help or support (i.e therapy) but you could
also work on the situation yourself.

We often sense that “role switching” of PHASE 3 is needed or wanted but have trouble being able to deeply
understand and feel into others’ experiences of the conflict we are in. Role switching is imagining or feeling how
another sees and experiences the problem and embracing (even if briefly) their point of view. This often relieves
the tension momentarily and allows us to find common ground or approach the other from a less polarized point
of view. We sometimes need outside help or support (therapy, counseling, meditation) to reach this phase but
there are tools and skills we can learn and develop to help ourselves into this phase

PHASE 4, the feelings of relaxed detachment and sensing how the universe moves you, is not only a phase but
also the background of openness and acceptance behind all the phases.

CONCEPT OF CONFLICT RESOLUTION

Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending
of conflict and retribution. The term conflict resolution may also be used interchangeably with dispute resolution,
where arbitration and litigation processes are critically involved. The concept of conflict resolution can be thought
to encompasses the use of nonviolent resistance measures by conflicted parties in an attempt to promote
effective resolution.

Committed group members attempt to resolve group conflicts by actively communicating information about their
conflicting motives or ideologies to the rest of group (e.g. intentions; reasons for holding certain beliefs) and by
engaging in collective negotiation. Dimensions of resolution typically parallel the dimensions of conflict in the
way the conflict is processed. Cognitive resolution is the way disputants understand and view the conflict, with
beliefs, perspectives, understanding and attitudes. Emotional resolution is in the way disputes feel about a

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conflict, the emotional energy. Behavioral resolution is reflective of how the disputants act, their behavior.
Ultimately, a wide range of methods and procedures for addressing conflict exist, including negotiation,
mediation, mediation-arbitration, diplomacy, and creative peacebuilding.

Kenneth Thomas and Ralph Kilmann developed five conflict resolution strategies that people use to handle
conflict, including avoiding, defeating, compromising, accommodating and collaborating.

This assumes that people choose how cooperative and how assertive to be in a conflict. It suggests that everyone
has preferred ways of responding to conflict, but most of us use all methods under various circumstances.

Conflict Resolution

Strategies Strategy 1 – Avoiding

This is when people seek to withdraw from or
ignore any conflict, usually because feeling uncomfortable about
the confrontation outweighs any possible reward from resolving it.
The problem is that this strategy doesn’t really resolve the issue
because there is a lack of contribution to the conversation.

Strategy 2 – Competing
People who are overly assertive rather than cooperative enter into
conflict resolution with the intention of winning. There is an assumption
that one person wins and the other loses, pushing out any chance
of seeing a different perspective. As a result, this is not usually a good
strategy for resolving conflicts within a group.

Strategy 3 – Accommodating
Giving in to the wishes or demands of another is being cooperative, but not assertive. Yes, it appears
that the person is being gracious should their argument be incorrect, but when a person gives in just to keep the
peace, it isn’t necessarily helpful. Similar to “avoiding”, it doesn’t always lead to a satisfactory resolution to an
issue, and leaves the door open for more assertive members of the group to take control.

Strategy 4 – Collaborating
For most project or team managers, this is probably the strategy they’ll use. A collaborative person is
cooperative and assertive at the same time, allowing each member of the group to contribute and then resolving
the issues by establishing a shared solution that all can support.

Strategy 5 – Compromising
The last strategy is similar to “collaborating” but the person is only halfway towards being assertive and
cooperative. The concept is that each member of the group gives up something so that no member gets
everything. This is perceived as the best outcome, working to a compromise that is fair although, often, no one
is completely happy with the final resolution.

Lesson 2 RESTORATIVE JUSTICE VS RETRIBUTIVE 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.

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✓ Retributive justice, response to criminal behavior that focuses on the punishment of lawbreakers and
the compensation of victims. In general, the severity of the punishment is proportionate to the seriousness
of the crime.
The concept of retributive justice has been used in a variety of ways, but it is best understood as that
form of justice committed to the following three principles:
1. that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally
deserve to suffer a proportionate punishment;
2. that it is intrinsically morally good—good without reference to any other goods that might arise—
if some legitimate punisher gives them the punishment they deserve; and
3. that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately
large punishments on wrongdoers.

The following are some differences of restorative and retributive justice:

Retributive Justice Restorative Justice

Crime is an act against the state, a violation Crime is an act against another person and the
of a law, an abstract idea community

The criminal justice system controls crime Crime control lies primarily in the community

Offender accountability defined as taking Accountability defined as assuming responsibility

punishment and taking action to repair harm

Crime is an individual act with individual Crime has both individual and social dimensions
responsibility of responsibility

Lesson 3 ALTERNATIVE DISPUTE RESOLUTION AND AMICABLE SETTLEMENT

ALTERNATIVE DISPUTE RESOLUTION (ADR)

✓ The concept of Alternative Dispute Resolution (ADR) denotes the process in which disputes are
addressed and settled outside of the courtroom. In a more detailed language, ADR refers to the ways
in which disputes are resolved without litigation.
✓ ADR is the procedure for settling disputes without litigation, such as arbitration, mediation, or
negotiation.
✓ One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation, ADR
procedures are often collaborative and allow the parties to understand each other's positions. ADR also
allows the parties to come up with more creative solutions that a court may not be legally allowed
to impose.

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CONCILIATION
Conciliation is defined as an alternative dispute resolution mechanism that is designed to resolve a
dispute among the parties through a non-adjudicatory and non- antagonistic way. It involves the neutral third
party who makes the disputant parties arrive at a conclusion and a satisfactory dispute settlement.
Conciliation is a voluntary mechanism and the conciliator who makes the parties resolve the dispute
cannot force the parties to come to an end of the dispute with a solution. The parties are not bound to follow the
solution and advice given by the conciliator. The decision of the conciliator cannot be pressurized upon the
parties to the dispute. Conciliation is a less formal and comparatively easy process from old conventional
methods and other alternative dispute resolution processes. The conciliator provides the parties with an
appropriate solution in order to resolve the dispute efficiently and effectively. This process is less time consuming
and cost- effective as no legal procedures are to be followed and no formal technicalities are involved in this
dispute resolution process. The solutions provided by the third neutral party to the dispute is always kept in mind
that it is best suitable for the interest and priorities of the disputant parties.
NEGOTIATION
Negotiation has been defined as any form of direct or indirect communication whereby parties who have
opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve
the dispute between them.
Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future
relationship between two or more parties.
Negotiation has also been characterized as the “preeminent mode of dispute resolution”, which is hardly
surprising given its presence in virtually all aspects of everyday life, whether at the individual, institutional,
national or global levels. Each negotiation is unique, differing from one another in terms of subject matter, the
number of participants and the process used.
Characteristics of a Negotiation
Negotiation is:
✓ Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or
reject the outcome of negotiations and can withdraw at any point during the process. Parties may
participate directly in the negotiations or they may choose to be represented by someone else,
such as a family member, friend, a lawyer or other professional.
✓ Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range
from two individuals seeking to agree on the sale of a house to negotiations involving diplomats
from dozens of States (e.g., World Trade Organization (WTO)).
✓ Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is reached
by the parties together without recourse to a third-party neutral.
✓ Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever
rules they choose, if any. Generally, they will agree on issues such as the subject matter, timing
and location of negotiations. Further matters such as confidentiality, the number of negotiating
sessions the parties commit to, and which documents may be used, can also be addressed.
✓ Confidential: The parties have the option of negotiating publicly or privately. In the government
context, negotiations would be subject to the criteria governing disclosure.
✓ Flexible: The scope of a negotiation depends on the choice of the parties. The parties can
determine not only the topic or the topics that will be the subject of the negotiations, but also
whether they will adopt a positional- based bargaining approach or an interest-based approach.
MEDIATION
Simply put, mediation is negotiation between disputing parties, assisted by a neutral. While the mediator
is not empowered to impose a settlement, the mediator's presence alters the dynamics of the negotiation and

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often helps shape the final settlement.
Successful mediations result in a signed agreement or contract which prescribes the future behavior of
the parties; this is often called a memorandum of understanding. Such an agreement has the force of a contract
and, when signed, becomes binding.
Characteristics of a mediation
Mediation is:
✓ Voluntary: No party is forced to use a mediator, nor are they forced to agree to a particular settlement.
✓ Non-Coercive: The mediator does not decide for the parties, but helps them make their own decision.
✓ Assisted Negotiation: The mediator's role is to be an impartial third party who helps the parties
reach a fair and mutually acceptable settlement. The mediator may provide relationship-building and
procedural assistance. Moreover, the mediator may also provide substantive options to the parties.
✓ Informal: The proceedings of a mediation are more relaxed and informal than those of a court or an
arbitration. There are no prescribed rules of procedure and few rules other than those agreed to by
the parties themselves.
✓ Confidential: Generally, mediation is described as a confidential process. It is up to the parties to
jointly establish any limits. If it is decided that the mediation should be confidential, the parties and
the mediator should sign a clause to that effect.
Role of a Mediator?
In various situations, the mediator may attempt to:
✓ Encourage exchanges of information
✓ Help the parties understand each other's views
✓ Let the parties know that their concerns are understood
✓ Promote a productive level of emotional expression
✓ Lay out the differences in perceptions and interests
✓ Identify and narrow issues
✓ Help parties realistically evaluate alternatives to settlement
✓ Suggest that the parties take breaks when negotiations reach an impasse
✓ Encourage flexibility and creativity
✓ Shift the focus from past to future
✓ Shift the focus from one of blame to a creative exchange between the parties
✓ Hold caucuses with each disputant if there is deadlock or a problem
✓ Propose solutions that meet the fundamental interests of all parties.

ARBITRATION
Arbitration is perhaps the most popular and widely known dispute resolution process. Like litigation,
arbitration utilizes an adversarial approach that requires a neutral party to render a decision.
Arbitration is:
✓ Voluntary: Parties must expressly agree to arbitrate in writing, or fall within the ambit of legislation that
mandates arbitration in a given situation. If the parties have agreed to arbitrate, the court, on the motion
of one of the parties to the agreement, will generally require the parties to submit the dispute to arbitration,
unless it is found that the arbitration agreement is null and void, inoperative or incapable of being
performed.
✓ Controlled: The parties and their counsel are able to control procedural aspects of the process, including
the choice of neutral, timing and location of the hearing, as well as who, other than the parties themselves,
may be present.
✓ Private: An arbitration is usually conducted in private.
✓ Adjudicative: As in litigation, once a case has been presented by each side, the arbitrator issues a
decision.

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✓ Confidential: Arbitration is generally confidential, if the parties so elect.
✓ Adversarial: While the arbitration process is based on the adversarial style of the litigation model, the
demeanor and nature of the hearing are determined by the parties, their counsel and the arbitrator.
✓ Flexible: The parties have discretion in choosing an arbitrator and the procedure to be followed in
resolving the dispute.
Why use arbitration?
The dispute resolution process that best suits a particular case can only be determined upon an analysis
of the dispute itself and the needs and interests of the parties. What does arbitration provide that litigation and
the other dispute resolution processes do not?
a. Speed – One of the main advantages of arbitration is its capacity to have disputes resolved quickly. Even
though the majority of court actions settle before trial, this often occurs only after lengthy and expensive
trial preparation, including examinations for discovery. Arbitration may provide the opportunity to side-
step prescribed procedural requirements of litigation. The parties also determine the timeframe for the
arbitration, allowing them to bypass delays inherent in litigation.
b. Choice of the neutral – Arbitration provides the disputants with the opportunity to choose the
individual(s) who will decide the issues in question. This freedom allows the parties to customize the
resolution process to suit these issues by, for example, choosing a neutral with expertise in the subject
matter of the dispute.
c. Technical issues – Arbitration gives the parties an opportunity to secure the services of an individual
experienced in a technical area, or one who has knowledge of the commercial norms relevant to a
particular business field. It is for this reason that disputes in the construction industry and maritime law
are often resolved through arbitration.
d. Confidentiality – There are cases which, by their very nature, require a confidential outcome. This may
occur because the dispute involves privileged information or issues of particular sensitivity.
Different forms of ADR:
✓ Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral
case evaluator who advises the parties on the strengths and weaknesses of their respective positions,
and assesses how the dispute is likely to be decided by a jury or other adjudicator.
✓ Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case
is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The
evaluation of the expert can assist the parties in assessing their case and may influence them towards a
settlement.
✓ Family group conference: a meeting between members of a family and members of their extended
related group. At this meeting (or often a series of meetings) the family becomes involved in learning
skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
✓ Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by
the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is
particularly useful for resolving complex scientific and factual disputes.
✓ Ombuds: third party selected by an institution – for example a university, hospital, corporation or
government agency – to deal with complaints by employees, clients or constituents.
LITIGATION AS MODES OF DISPUTE RESOLUTION
✓ Litigation refers to the process of preparing and presenting a case in court.
✓ If there is no contractual alternative then the only formal way to resolve disputes will be by litigation.
✓ The concept of litigation is already well understood, it being a formal dispute resolution process
conducted in public in the courts. The judge makes a judgment which is binding on the parties, subject
to the right of appeal on a point of law.

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❖ The rules, procedures and application of the different types of ADR in our country (Philippines) will be
presented in your module 2 particularly RA 9285 or Alternative Dispute Resolution Act of 2004.
❖ When ADR happens, amicable settlement will be the possible result.
❖ What is amicable settlement?
✓ Amicable settlement is a process where parties to a dispute or a lawsuit find ways to resolve
their differences in a friendly and non- contentious way.
✓ To achieve an amicable settlement, the parties need to be willing to make concessions for
the sake of reaching an agreement.
✓ Without the desire to make an effort to settle a legal case, it will be nearly impossible to achieve
an amicable settlement.
✓ When parties reach an amicable settlement, they’ll either do it on the basis of their own desire
to resolve their dispute or will use the services of a mediator or a lawyer to support them in the
process.

References
Britanicca. (n.d.). critical theory | Definition & Facts. Retrieved September 22, 2020, from
https://www.britannica.com/topic/critical-theory
Canada Department of Justice. (2017, July 31). Dispute Resolution Reference Guide. Retrieved September 26,
2020, from https://www.justice.gc.ca/eng/rp-pr/csj- sjc/dprs-sprd/res/drrg-mrrc/03.html
Conflict Resolution Techniques in Project Management. (2019, July 30). Retrieved September 22, 2020, from
https://www.projectmanagementqualification.com/blog/2019/04/01/conflict- management-guide/
Conflict Solutions Center. (n.d.). Retributive vs. Restorative Justice. Retrieved September 22, 2020, from
http://www.cscsb.org/restorative_justice/retribution_vs_restoration.html
Crossman, A. (2019). What Is Conflict Theory? Retrieved September 22, 2020, from
https://www.thoughtco.com/conflict-theory-3026622
Find Law Team. (2020, October 8). What Is Alternative Dispute Resolution?
Retrieved October 23, 2020, from https://www.findlaw.com/hirealawyer/choosing-the-right-
lawyer/alternative- dispute-resolution.html
Fisher, S., Ibrahim Abdi, D., Ludin, J., Smith, R., Williams, S., Williams, S. (2000).Working with conflict: skills
and strategies for action. Zed books.
Hurst, A. (2017). Post-Structuralism. Retrieved September 22, 2020, from
https://www.oxfordbibliographies.com/view/document/obo- 9780190221911/obo-9780190221911-
0008.xml

------------------------------------------------------------- end of notes ------------------------------------------------------------------

Compiled by: JENNIFER F. GUITBA, MSCJ

Subject Instructor

Reviewed by: JEFFSON G. NAUNGAYAN, MSCRIM

Program Chair, BSCrim

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