BASICS OF ALTERNATIVE DISPUTES RESOLUTION Department Order No

BASICS OF ALTERNATIVE DISPUTES RESOLUTION Department Order No. 15, series of 2012

Behavior SKILLS Attitude Programs Values MIND SET WHO ARE WE

THE CARROT AND STICK PROGRAM �The carrot and stick are pervasive and persuasive motivators. �But if you treat people like donkeys, they will perform like donkeys…

VICTIMHOOD PROGRAM � The insistence that people see us through the lens of our perceived hurts, injuries and traumas

Victimhood is the flip side of the program to control �On the surface, it is a way of painting ourselves as powerless. �At a deeper level, it is actually a powerful attempt to control others and get what we want.

Symptoms of Victimhood �Clinging strongly to one’s version of story �Tendency to bring up stories of past injuries �Baiting the other into a new argument so as to recreate victimization in real time for all to see �Resisting coming into agreement that does not enshrine their status (demanding apology or acknowledgement)

Costs of Victimhood �Generates continued pain and suffering in keeping trauma alive long after the injury �Creates a feeling of entrapment (lack of choices) �Impedes conflict resolution- limits options because outcome s focused only on what one wants to see �Prevents connection with others

How to Address Victimhood �Focus on the present �Be clear that every thought is a matter of choice, not an inevitable consequence of the past �Patience is required as one may have made victimhood an ingrained central part of one’s identity �Explore alternative interpretations of issues �See present cost of victimhood

The Nature of Conflict �When we are in conflict we say things we don’t mean and mean things we don’t say �Conflicts have the capacity to confuse and hypnotize us, making us believe there is no way out other than battle �Conflict possesses a dark, hypnotic, destructive power

The Nature of Conflict �It speaks to a deep and ancient part of our soul that thirsts for power and revenge �When we are in conflict, our emotions become enormously powerful and overwhelming �We become aggressive, judgemental, and hysterical or else, passive, apathetic and defensive

Being so pained we do not know how to: �Temper our anger with compassion, �Listen to other’s pain, �Discover what caused the other person to act as he did, �Take responsibility for our own contribution to the conflict. As a result we feel trapped.

Definition of Conflict �Conflict is a basic dynamic of human interaction in which people struggle to balance concern for oneself with connection to others. When this balance is upset, human interaction becomes alienated and destructive, resulting in a crisis in human interaction, also called a conflict

Sphere of Conflict • Lack of info • Misinformation • Different views • Different interpretations • Different assessments • Strong emotions • Misperceptions and stereotypes • Poor or wrong communication • Repetitive negative behaviour Relationship Value • Different criteria for evaluating ideas or behavior • Exclusive value goals • Different life, ideology, religion, way of life Data • Perceived or actual • Competitive: - Substantive Interest interest - Procedural interest Structural -Psychological interest • Control over resources • Destructive ways of behavior or interactions • Unequal control • Unequal power • Geo/physical/enviro factors that hinder cooperation • Time constraints

Dynamics of Conflict Retaliatory Cycle

Retaliatory Cycle Model Trigger Perceived Threat Acting out Resistance due to lack of communication Anger

Responses to Conflict

Two Basic Responses � Fight � Flight Avoid Ignore Deny Syndrome

1. Avoid �“Form a fact-finding committee to investigate the problem. ” �“I am transferring you to where I think the school can have better use of your qualifications”

2. Ignore �“Let’s stay away from using our emotions. ” �Let’s just work. Forget our differences. ”

3. Deny �“We are all one big happy family. We don’t have problems. ” �You’re making a mountain out of a molehill. There’s no problem here. ”

Two Ways to Fight � Violently � Non- violently

Conflict Responses and Outcome FLIGHT Avoid -Procrastinate -Postpose -Appoint a Committee -Pass the buck -Rationalize/ group think FIGHT Ignore Keep doing what you’re doing Denial Violently Non--Violently -War -Vote(win/lose) - Negotiate - Compromise -Violence - Consensus -Threaten - Mediate -Arbitrate -Litigate -Quiet violence picket, strike demo, white paper civil disobedience collect signatures

Human Physiology of Conflict EVENTS What somebody did or say that upset you? THINKING ACTIONS FEELING NEEDS

Non-Adversarial Communication (Language of Compassion) �NAC is based on the premise that: �We are all simply trying to get our needs met �Get these needs met thru cooperation and without aggression �We naturally enjoy contributing to the well-being of others

Four Components of the Language of Compassion �The concrete action we are OBSERVING that are affecting our well-being �How we are FEELING in relation to what we are observing �The NEEDS, values, desires that are creating our feelings �The concrete actions we REQUEST the other in order to improve our well-being

Adversarial Nonadversarial Observation You always come late every morning You come in at half past 9 o’ clock…. Feeling I feel so betrayed and unsupported I feel frustrated…. Need I need some ethical values observed around here It is important that we start the meeting on time so we can get on with our day Request You better shape up or May I ask you to be ship out here at 9 AM sharp?

Conflict Resolution Spectrum Mediation Negotiation Unstructured/Consensual Informal/Control with User Concelliation Expert Appraisal Neutral Evaluation Arbitration Litigation Structured/Adversarial Formal/Control with 3 rd Party

Negotiation Decision Party A Party B • Parties control the process • Parties engage in verbal interaction completely in their own terms • Decision is made by the parties • Outcome is whatever the parties agree to

Mediation Mediator Disputant Decision • Mediator agreed to by the parties • Informal process controlled by the mediator • Mediator is an independent and impartial facilitator • Parties fully participate in decision issues, creating, evaluating & agreeing options • Focus is on the present and future and solving problems • Outcome aims for mutually accepted win-win

Arbitration Claimant Decision Arbitrator Respondent • Mediator is appointed by the parties • Formal process-regulated by arbitration procedure • Parties input ideas and background • Adversarial proceedings • Focus is on rights and past events • Decision is based on evidence and technical assessment and imosed on the parties by the arbitrator

Litigation Plaintiff Decision Judge Defendant • Judge appointed by the state • Formal process regulated by the rules of evidence and court procedure • Role of lawyer is to act as advocate and discredit opposition • Adversarial process where lawyers act in parties’ behalf • Focus is on rights and past events • Decision is imposed on the parties by the judge

Integrative Negotiation Analysis Framework Problem The immediate source of the dispute Demand Positions, threats, fixed solutions, Proposals, points of view Interest What really matters to this person (Why is X a problem? ) Options Ways to solve problem based on interests surfaced Solutions The option that best serves all parties’ interest

What can be negotiated? BEHAVIOR • How people treat each other • Sharing space • Respecting boundaries • Communicating about problems • Noise THINGS and MONEY • Property • Reimbursement • Arranging payments • Repairs • Loans • Maintenance STRUCTURES and SYSTEMS • How decisions are made • Rules and regulations • Procedures • Schedule • Job responsibilities • Access

WHAT CAN BE NEGOTIATED under Dep. Ed Order No. 15, series of 2012 1. Complaints/Grievances/Disputes concerning an act or omission of Dep. Ed officials/employees alleged to be unreasonable, unfair, oppressive, discriminatory, illegal, unjust, improper or inefficient involving Dep. Ed officials and employees.

� 2. Those offenses that fall under light offenses where the corresponding penalty is reprimand such as: a. Discourtesy in the course of official duties b. Improper or unauthorized solicitation of contribution from subordinate employees and by teachers or school officials from school children. c. Violation of reasonable office rules and regulations d. Frequent unauthorized tardiness (Habitual Tardiness) e. Gambling prohibited by law f. Refusal to render overtime service g. Disgraceful, immoral or dishonest conduct prior to entering the service

�h. Borrowing money by superior officers from subordinates �i. Lending money at usurious rates of interest �j. Wilful failure to pay just debts or wilful failure to pay taxes due to the government �k. Lobbying for personal interest or gain in legislative halls and offices without authority �l. Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases, if there is no prior authority �m. Failure to act promptly on letters and request within fifteen (15) days from receipt, except as otherwise provided in the rules implementing the Code of Conduct and Ethical Standards for Public Officials and Employees implementing the code conduct and Ethical Standards for Public Official and Employees

�n. Failure to process documents and complete action on documents and papers within a reasonable time from preparation thereof, except as otherwise provided in the rules implementing the Code of Conduct and Ethical Standards for Public Officials and Employees �o. Failure to attend to anyone who wants to avail himself of the service of the office, or act promptly and expeditiously on public transaction �p. Engaging in private practice of his profession unless authorized by the Constitution, law or regulation, provided that such practice will not conflict with this official functions �q. Pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations.

NOT SUBJECT TO NEGOTIATION under Dep. Ed Order No. 15, series of 2012 �Sexual Harassment �Child Abuse Cases �Cases Involving Violence Against Women and Children under R. A No. 9262 �Issues related to the Performance Evaluation System �Motu Propio Cases

When do people decide to settle? �When they reach a mutually hurting stalemate; �When they are able to understand explore their interests and options; �When they are able to participate in a communication process that encourages a change in perceptions and attitude

�For centuries the rule of law has been considered the best system. It has symbolized progress and has been an effective bulwark against tyranny

�Yet the law has inherent defects and tragic flaws that limit its effectiveness as an instrument for conflict resolution, community building, and collaborative social change

�It takes too long; �It costs too much; �It is adversarial rather than conciliatory; �It is too dependent on definitions, thus cannot act when outside the legal definition �Relationships cannot be discussed or corrected; �Results are based on fault, not resolving underlying issues.

What is Better than Rule of Law?

A system where: �Results are obtained voluntarily; �There are no rules of evidence; �Emotions are expressed acknowledged and respected, �There is greater concern for the future than for the past; �The third party facilitates rather than decides; �Parties have a say on how to end the conflict; �People are encouraged to be honest, not manipulative; �There is collaboration, not coercion; �Reconcilliation can truly happen; �Results are durable

This is: MEDIATION

Mediation is: �Justice coming full circle; �It is a return to ancient principles of wisdom, compassion, honesty, selfrevelation, healing, and forgiveness; �It is not bargaining in the shadow of the law; �It is anchored in human needs and wants and is a superior form of conflict resolution; �It is negotiating in the light of human emotions, values, community, justice, and

�It is a process where a trained neutral third party facilitates the negotiation between parties, and using learned techniques, help them reach a voluntary, mutually satisfying agreement

�In its deepest form, it is a process that promotes EMPOWERMENT and MUTUAL RECOGNITION

Key Qualities of a Mediator �An A-grade listener; �Non-judgmental and tolerant; (NAC) �Open-minded; �Capable of staying calm; �Positive under pressure; �Good at getting the best out of people; �Able to maintain confidentiality; �Organized

The Mediation Process Who are present? �The parties involved �The mediator(s) �The lawyers (if desired by the parties)-to advise their clients between sessions and before the final agreement is signed

The Mediation Session Time: About 2 hours ELEMENTS OF THE MEDIATION PROCESS: �Opening conversation; (check list) �Uninterrupted time; �The exchange and private caucusing �Setting the agenda; �Building the agreement; �Making the agreement

Model of Mediation PREPARATION PAST Opening Conversation Uninterrupted Time Exchange and Private Caucus Agenda Settings Building the Agreement and Closure FAST 2 HOURS

Stage 1: The Opening Conversation �Welcome and words of encouragement; �Purpose and goal of parties in mediation; �Role of the mediator/parties; �Confidentiality; �What to expect; �Ground rules; �Answer questions and establish buy-ins; �Consent to proceed

Why the opening conversation is important �It prevents failure often due to: �Parties lack of knowledge about what is expected of participants; �Unwillingness of parties to participate; �Parties’ lack of understanding the process. �It establishes what can be expected of the mediator; �Puts lawyers in place; �It saves time.

Stage 2: Uninterrupted Time �Set a courteous, unhurried tone; �Explain listening and speaking; �Give each person his turn to speak; �Listen to what each person has to say; �Select someone to start (at random); �Protect each person’s speaking turn; �Formally end each turn; check that each person is finished; �Thank them and move on

Stage 3: The Exchange �Keep control of the session; �Include each person; �Ask necessary questions; �Listen for interests and issues; �Refrain from finding solutions yet; �Watch for moments of reconciliation

When to use a private caucus FOR SUPPORT: • To separate, cool off, or calm down angry people; • Give shy or fearful people a chance to speak; • Help people think through what they want FOR SOL; VING THE PROBLEM: • Receive private info; • Explore interests and potential solutions; • Help unstuck the solution FOR CONTROL: • Change the mood or direction of the session; • Interrupt disruptive or unhelpful behavior; • Confront people privately

How to conduct PRIVATE CAUCUS �Before mediation starts, decide where separate sessions will take place and where parties will wait; �Always meet with each party; �Call for separate meeting in a matter-of-fact tone; �Be clear in your own mind about purpose and goal; �Assure them of confidentiality; �Stay focused; �Ask permission on what you can reveal to other party; �Take notes with you when you leave the table

Stage 4: Setting the Agenda �Summarize what has been accomplished: �List the issues they need to negotiate: �Organize your notes and select key issues (ex. : issues that need joint decisions, often mentioned issues, emotionally charged, potentially negotiable, key to a durable solution); �Use positive impartial language; �Reflect each one’s concern; �Present problems as shared concerns. �Agree on the agenda. Check for accuracy and completeness

Identifying issues “Do you think you can railroad us just because you are the boss? ” The problem with you is your inability to work with as a team You are rude and mindless of your role as my subordinate “You are not my boss, Jean is. She assigns me my work. Don’t t dump your work on me just because you’ve been here longer than anyone else. ” “We need to talk about how decisions are made. Does this sound right to you? “I think the main issues are how to communicate work tasks and how you treat one another. Is there anything else you may want to add

Stage 5: Building the Agreement �Work through each issue: �Elicit ideas; �Evaluate and refine alternatives; �Test for agreement and explore consequences; �Write down tentative agreement; �Keep discussions on track: �Expect for tacking back and forth �Refer back to the agenda to keep all in focus �Stay within the time

Reality Test �KEY CONCEPTS: �BATNA: Best alternative to a Negotiated Agreement �WATNA: Worst agreement to a negotiated agreement �MLATNA: Most likely alternative to a negotiated agreement

May Mediators Suggest Solutions? �YES and NO �Reasons why Mediators Should Hold back making suggestions � To show trust that parties know better; � To prevent them from feeling incapable; � To prevent them from not taking the responsibility; � To give them more stake on the solution; � To prevent them from being uncomfortable; � To protect the mediator from taking blame

Stage 6: Writing the agreement �Review each point of the agreement; watching out for its workability, wording, acceptability, finality and conditionality �Write out the final copy, read aloud; �Have every person present sign and give each party a copy

Closing Conversation �Acknowledge what they have accomplished �Remind them of the next steps

Wrap-up �Complete all paperwork; �Have the mediation evaluation form accomplished �Submit the Mediator’s report; �Destroy all notes and return submitted documents to the parties

Special Skills of a Mediator �Listening; �Summarizing; �Questioning; �Reframing; �Anger management; �Self Management

SOLUTION: What might work for you? INTEREST: What is it that makes you ask that? PROBLEM: Can you tell me how the situation started? DEMAND: What do you want to see happen? OPTIONS: What are the other way you might get that (I) other than (D)?

Desiderata Go placidly amid the noise and haste, and remember what peace there may be in silence. As far as possible without surrender be on good terms with all persons. Speak your truth quietly and clearly; and listen to others, even the dull and ignorant; they too have their story. Avoid loud and aggressive persons, they are vexations to the spirit.

If you compare yourself with others, you may become vain and bitter; for always there will be greater and lesser persons than yourself. Enjoy your achievements as well as your plans. Keep interested in your own career, however humble; it is a real possession in the changing fortunes of time.

Exercise caution in your business affairs; for the world is full of trickery. But let this not blind you to what virtue there is; many persons strive for high ideals; and everywhere life is full of heroism. Be yourself. Especially, do not feign affection. Neither be critical about love; for in the face of all aridity and disenchantment it is as perennial

Take kindly the counsel of the years, gracefully surrendering the things of youth. Nurture strength of spirit to shield you in sudden misfortune. But do not distress yourself with imaginings. Many fears are born of fatigue and loneliness. Beyond a wholesome discipline, be gentle with yourself.

You are a child of the universe, no less than the trees and the stars; you have a right to be here. And whether or not it is clear to you, no doubt the universe is unfolding as it should. Therefore be at peace with God, whatever you conceive Him to be, and whatever your labors and aspirations, in the noisy confusion of life keep peace with your soul. With all its sham, drudgery and broken dreams, it is still a beautiful world. Be careful. Strive to be happy.