CHAPTER 1

Principles and Philosophies of Reconciliation,

Arbitration, Negotiation and Meditation
What is Conflict?
 The word conflict comes from the latin word “conflingere” which
means to come together for a battle.
 A serious disagreement and argument about something
important.
 An activity which takes place when conscious beings wish to
carry out mutually inconsistent act concerning their wants, needs
or obligations.
 A natural disagreement or struggle between people which may be
physical, or between conflicting ideas.
What are the Conflict Resolution Strategies?
Kenneth Thomas and Ralph Kilmann (2015) developed five conflict
resolution strategies:
1. Avoiding
2. Competing
3. Compromising
4. Accommodating
5. Collaborating
Conflict Resolution Strategies
1. Avoiding
 This is unassertive and uncooperative. The person neither
pursues his own concerns nor those of the other individual. Thus,
he does not deal with the conflict. Avoiding might take the form of
diplomatically sidestepping an issue, postponing an issue until a
better time or simply withdrawing from a threatening situation.
2. Competing
 This is assertive and uncooperative. An individual pursues his
own concerns at the other persons expense. This is a power-
oriented mode in which you use whatever power seems
appropriate to win your own position, your ability to argue, your
rank, or economic sanctions.
3. Accommodating
 This is unassertive and cooperative, the complete opposite of
competing. When accommodating, the individual neglects his own
concerns to satisfy the concerns of the other person, there is an
element of self sacrifice in this mode.
 Accommodating might take the form of selfless generosity or
charity, obeying another persons order when you would prefer
not to, or yielding to another point of view.
4. Collaborating
 It is both assertive and cooperative the complete opposite of
avoiding. Collaborating involves an attempt to work with others
to find some solution that fully satisfies their concerns. It means
digging into an issue to pinpoint the underlying needs and wants
of two individuals. Collaborating between two persons might take
form of exploring a disagreement to learn from each others
insight or trying to find a creative solution to an interpersonal
problem.
5. Compromising
 It is moderate in both assertiveness and cooperativeness. The
objective is to find some expedient, mutually acceptable solution
that partially satisfy both parties. It falls intermediate between
competing and accommodating.
 Compromising gives up more that competing but less that
accommodating. Likewise it addresses an issue more directly
than avoiding, but does not explore it in as much depth as
collaborating.
Negotiation
 A process where to parties in a conflict or disagreement try to
reach a resolution together.
 Process
 Prior - consult a lawyer.
 During - parties or their representatives (lawyers) discuss the
issues to come to a resolution.
Principles of Negotiation
 Reason - to produce something better than results that can be
obtained without negotiation.
 Goal - an agreement that is acceptable to all parties, to which they
remain committed, and which they needed to implement.
Mediation
 Process where a neutral person assists the parties in discussing
the matter and reaching a solution.
Mediator
 A person who conducts mediation.
 Help the parties communicate.
 Ensures that communication between the parties is fair and
honest.
 He is not judge or an arbitrator and cannot take the side of either
party, gives legal advice, and/or provides counselling.
 Can assist by clarifying issues, identifying concerns, and helping
parties understand each others interest.
 Can assist the parties in reaching an agreement between them but
will not force the parties into solution during mediation.
How is Mediation Done?
 In private and the decisions made are private.
 Can take place in person where parties meet face to face for
discussions.
 Or the parties may be place at separate locations where the
mediator communicates information between parties.
 After mediation, the parties can sign a Memorandum of
Agreement (MOA)
Memorandum of Agreement (MOA)
 A cooperative agreement written between the parties to obey the
agreed terms and conditions.
 Mediators writes the MOA which outlines details of the solutions
reached by the parties.
 Purpose: to have a written understanding of the agreement
between the parties.
 Each party should have their lawyer to review the MOA.
Ethical Conduct of a Mediator
1. Competence
2. Impartiality
3. Confidentiality
4. Consent and Self-determination
5. Separation of Mediation from Counseling and Legal Advice
6. Promotion of Respect and Control of Abuse Process
7. Solicitation or Acceptance of any Gift
Characteristics of Mediation
1) Promotes communication and cooperation.
2) Provides a basis for you to resolve disputes on your own.
3) Voluntary, informal and flexible.
4) Private and confidential, avoiding public disclosure of personal or
business problems.
5) Reduces hostility and preserve ongoing relationships.
6) Allows mutually acceptable agreements tailored to meet the
parties need.
7) Win-win solution.
Disadvantages of Mediation
1. Possibility that a settlement between the parties may not arise.
2. Lacks the support of any judicial authority.
3. Absence of formality-not based on any legal principle.
4. Truth of an issue may not be revealed.
Arbitration
 A process where a neutral third party makes a decision. The
decision makers in arbitration are called arbitrators. There can be
one arbitrator or multiple.
 Common in commercial disputes, consumer and employment
matters, family disputes, or insurance claim.
Advantages of Arbitration over Court hearings and
Litigation
1. Faster
2. More flexible
3. Less argumentative
4. Less intimidating
5. Less expensive
PROCESS
 Submission - referring a dispute to an arbitrator.
 Hearing - evidence and arguments are presented.
 Judgement - decision
Arbitral Decisions (Awards)
 Any partial or final decision by an arbitrator in resolving the issue
or controversy.
 Generally final and compulsory.
 May be filled in court and enforced as if it were a court
judgement.
 Often take a long time to receive an arbitration award.
General Principles of Arbitration
1. The object is to obtain a fair resolution of disputes by an impartial
third party without unnecessary expense or delay.
2. Parties should be free to agree how their disputes are resolved,
subject only to such safeguards as are necessary in the public
interest.
3. Courts should not interfere.
Litigation
 An action brought in court to enforce a particular right. Example:
Breach of contract.
 Act or process of bringing a lawsuit in and of itself; a judicial
contest;
 A contest authorized by law, in a court of justice for the purpose
of enforcing a right.
Basic Concept of Litigation
 To prevent injustice, court will restrain a party from further
litigation, by a writ of injunction;
 A judicial writ, process or proceeding whereby a party is ordered
to do or refrain from doing a certain act.
Characteristics of Litigation
1. It is involuntary. The parties are mandated by law to appear in
court
2. It is formal and structured
3. The parties are given equal rights to present their arguments
4. The process is public
5. The decision are restricted
6. The parties have the right to appeal
7. The losing party may pay the costs
Advantages of Litigation
1) The proceedings and discussions become part of public records
and the final judgement is clear
2) It is a two way process, both parties are expected to perform their
duties in litigation.
3) Discussion made in litigation become part of jurisprudence as
bases of deciding future similar cases
4) Appeals can be either a pro or con. A reviewer of the case may
show clearer impartiality
5) Stricter evidence, the discussion are based on evidence not on
speculations, hearsay or conjectures.
6) It is a cost effective option as summary rules apply
Disadvantages
- It is adversarial(involving two parties)
1. There is less regard to fair solution
2. The discussion made might not be acceptable to either party
3. This is disturbance of commercial relation ship
4. Decisions made results in a win lose scenario and not a mutually
acceptable decision
5. It is time consuming
What happens when a lawsuit goes to mediation?
 A mediator works with each party in a lawsuit to reach a
compromise before going to trial. However, no party can be
forced to settle.
Stages
I. Conveying the mediation
II. Preparation
III. Opening session
IV. Communication
V. The negotiation
VI. Closure