St.

Paul School of Business and Law

Palo, Leyte

Mid- Term Exam

Alternative Dispute Resolution

Conflict
Conflict resolution is a set of techniques for resolving conflicts with
the assistance of a third party. Alternative Dispute Resolution (ADR)
is a concept that encompasses a variety of mechanisms by which
conflicts are resolved. Conflict is usually based upon a difference
over goals, objectives, or expectations between individuals or groups.
Conflict also occurs when two or more people, or groups, compete
over limited resources and/or perceived, or actual, incompatible
goals. Effectively dealing with conflict requires the expression and
management of participants' varying perspectives, interests, belief
systems and values. It is important to meet the participants exactly
where they are. Hear from them fully before trying to lead them
anywhere. You cannot effectively move toward resolution until each
participant experiences themselves to be heard on "their
perspective," "what they want," and "why". Along with their
sometimes too well-known differences, people in conflict share
much common ground, including: overlapping interests,
interdependence, points of agreement. Conflict should also be
recognized as existing at two levels, the interpersonal level and the
intrapersonal level. Interpersonal conflict refers to a conflict
between two individuals. This occurs typically due to how people are
different from one another. We have varied personalities which
usually results to incompatible choices and opinions. Apparently, it is
a natural occurrence which can eventually help in personal growth or
developing your relationships with others. On the other hand,
Intrapersonal conflict occurs within an individual. The experience
takes place in the persons mind. Hence, it is a type of conflict that is
psychological involving the individuals thoughts, values, principles
and emotions. There are five types of conflict in mediation, the
relationship conflicts, data conflicts, interest conflicts, structural
conflicts and value conflicts. Relationship conflicts occur because
of the presence of strong negative emotions, misperceptions or
stereotypes, poor communication or miscommunication, or repetitive
negative behaviours. Data conflicts occur when people lack
information necessary to make wise decisions, are misinformed,
disagree on which data is relevant, interpret information differently, or
have competing assessment procedures. Interest conflicts are
caused by competition over perceived incompatible needs. Conflicts
of interest result when one or more of the parties believe that in order
to satisfy his or her needs, the needs and interests of an opponent
must be sacrificed. Structural conflicts are caused by forces
external to the people in dispute. Limited physical resources or
authority, geographic constraints (distance or proximity), time (too
little or too much), organizational changes, and so forth can make
structural conflict seem like a crisis. Value conflicts are caused by
perceived or actual incompatible belief systems. Values are beliefs
that people use to give meaning to their lives. Values explain what is
"good" or "bad," "right" or "wrong," "just" or "unjust." Differing values
need not cause conflict.

Negotiation

Negotiation is a social process by which interdependent people with

conflicting interests interact with others to achieve desired outcome
(Brett, 2007). It is the process of searching for an agreement that
satisfies various parties. A real negotiation implies a win-win
situation in which all parties are satisfied. Negotiation and mediation
aims to deal with conflict in a creative and positive way, and to find a
solution or a way for people to hear and appreciate the differences
between their perspectives. There are certain characteristics of
negotiation process and these are:

1. There are a minimum of two parties present in any

negotiation.
2. Both the parties have pre-determined goals which they wish
to achieve.
3. There is a clash of pre-determined goals, that is, some of the
pre-determined goals are not shared by both the parties.
4. There is an expectation of outcome by both the parties in
any negotiation.
5. Both the parties believe the outcome of the negotiation to be
satisfactory.
6. Both parties are willing to compromise, that is, modify their
position.
7. The incompatibility of goals may make the modification of
positions difficult.
8. The parties understand the purpose of negotiation

Negotiation, has seven distinguishable elements that are

interconnected. They are: Interests, Alternatives, Relationship,
Options, Legitimacy, Communication and Commitment.
Communication

It is a two-way process of reaching mutual understanding, in which

participants not only exchange (encode-decode) information, news,
ideas and feelings but also create and share meaning. Effective
communication is at the core of successful mediation. Mediators not
only need to use strong communication skills to understand a dispute
and to connect to parties; they also need to help the parties to
engage in a constructive exchange when their own poor
communication skills may be at the heart of the conflict. There are
mainly six types of communication which are used in various ways to
convey the final message to the receiver, these are: Verbal
communication, non-verbal communication, Intrapersonal
communication, Interpersonal communication, public communication
and mass communication. Verbal or oral communication uses
spoken words to communicate a message. When most people think
of verbal communication, they think of speaking, but listening is an
equally important skill for this type of communication to be
successful. Verbal communication is applicable to a wide range of
situations, ranging from informal office discussions to public
speeches made to thousands of people. Non-verbal
communication uses symbols other than words to transmit
messages, includes gestures, body language, how we utter words,
environment. Research suggests that nonverbal communication
constitutes anywhere between 65 and 93 percent of all human
communication. Certain forms of nonverbal communication may also
have different meanings in different cultures. Intrapersonal
communication also known as self-talk or thinking and refers to the
ways we communicate with ourselves. Often used to plan our lives,
rehearse scenarios before we act them out, and tell ourselves what
to do or not do. Interpersonal communication, this form of
communication takes place between two individuals and is thus a
one-on-one conversation. Here, the two individuals involved will swap
their roles of sender and receiver in order to communicate in a clearer
manner. Public communication refers to public speeches delivered
in front of audiences and which serves three main purposes: to
entertain, to persuade and/or to inform. Requires greater levels of
planning and preparation on the part of the speaker and involves less
direct interaction. Mass communication, any type of media that is
used to communicate with mass audiences. Examples of mass media
include books, television, radios, films, computer technologies,
magazines and newspapers. There are many barriers to
communication and these may occur at any stage in the
communication process. Barriers may lead to your message
becoming distorted and you therefore risk wasting both time and/or
money by causing confusion and misunderstanding. Effective
communication involves overcoming these barriers and conveying a
clear and concise message. The following are common barriers to
effective communication:

1. Encoding Barriers. The process of selecting and organizing

symbols to represent a message requires skill and knowledge.

2. Transmitting Barriers: Things that get in the way of message

transmission are sometimes called noise. Communication
may be difficult because of noise and some of these problems:

a. Physical Distraction

b. Conflicting message

c. Channel Barriers

d. Long communication chain

3. Decoding Barriers. The communication cycle may break

down at the receiving end for some of these reasons:
a. Lack of interest
b. Lack of knowledge
c. Lack of communication skills
d. Emotional Distractions
e. Physical Distractions
4. Responding Barriers The communication cycle may be
broken if feedback is unsuccessful.

To overcome these barriers, organize your ideas before

communicating them (intrapersonal), make it simple and concise to
avoid misunderstanding, be straight to the point, and complement
your message with the right tone, gesture and language. Use
language that is understandable by the receiver, avoid technical
jargons, communicate according to the need of the receiver and be a
good listener. Be responsive to the feedback given by the receiver,
correct any errors and misinterpretation in the feedback, focus on the
content of the feedback, not the person delivering it.

Active Listening

It is a communication technique used in counselling, training

and conflict resolution, which requires the listener to feed back what
they hear to the speaker, by way of re-stating or paraphrasing what
they have heard in their own words, to confirm what they have heard
and moreover, to confirm the understanding of both parties. When a
message is sent to us, we move through four stages in order to fully
understand and retain what we heard, Comprehension is the first
step in the listening process, in this stage you begin to make meaning
of the words and sentences. Retaining is the second step in the
listening process. Memory is essential to the listening process
because the information we retain when involved in the listening
process is how we create meaning from words. We depend on our
memory to fill in the blanks when we're listening. Because everyone
has different memories, the speaker and the listener may attach
different meanings to the same statement. If youve completed the
understanding and remembering portions of the listening process,
responding should be easier than ever. Youll be prepared to
address the speakers most important points, with an awareness of
the circumstances and context surrounding their words.

Barriers to active listening are those which create hindrance in

effective communication between the speaker and listener. Some of
the barriers are due to hunger or fatigue of the listener due to which a
listener gets irritated and doesn't want to listen to the speaker.
Sometime it is due to the language which is used by the speaker (use
of high sounding and bombastic words) which can lead to ambiguity
and finally it affects the active listening. Such barriers include
distractions, trigger words, vocabulary, and limited attention span.
Listening barriers may be psychological (e.g. emotions) or physical
(e.g. noise and visual distraction). To use the active listening
technique to improve interpersonal communication, one puts personal
emotions aside during the conversation, asks questions and
paraphrases back to the speaker to clarify understanding, and one
also tries to overcome all types of environment distractions. Judging
or arguing prematurely is a result of holding onto a strict personal
opinion. This hinders the ability to be able to listen closely to what is
being said. Eye contact and appropriate body languages are seen as
important components to active listening. The stress and intonation
may also keep them active and away from distractions.

Caucus and Impasse

Caucusing is a non-formal, less adversarial, and non-confrontational

PEACE-making tool between parties to reconcile and settle their
dispute. It is a private session where the MEDIATOR meets alone
with each party at any time during the mediation. When the mediator
chooses to caucus, it should be because, under all circumstances,
the mediator has decided that to be the best possible approach for
making progress. The mediator also needs to be aware of the
possibility, if not likelihood, that parties will share their respective
"secrets" with the mediator. While this may be helpful in
understanding each party's true motivations, and thus support
settlement efforts, secrets can be very challenging. Other strategic
reasons for caucusing include creating an opportunity to work on
unresolved anger issues or to allow consideration of a proposal
outside of the presence of the other party. Caucus may be especially
appropriate anytime the mediator's intervention runs the risk of
creating an appearance of uncertainty, weakness or embarrassment
in one or more parties. The mediator should state as clearly as
possible to the disputants the procedures that will be followed for
caucusing. Refer back to the remarks you made during your opening
statement about caucusing. Remind the parties that what is said
during caucus is confidential. The mediator should make sure to
summarize ALL the information conveyed by the parties during the
caucus.

Impasse is a period in mediation where the mediation process can

no longer move forward either due to resistance of parties to make
workable solutions or simply exhaustion of creativity. Impasse occurs
in mediation when neither party is willing to compromise any further
on an issue. When parties reach impasse, theyre likely to regard it as
the end of negotiations. Various reasons, including personality
differences or poor decision-making ability could be behind the
impasse. Once you pinpoint the cause you may be able to figure out
a work-around. The key to breaking an impasse is to identify
immediately its very nature and cause and then apply an appropriate
form of intervention to address it. To break through impasse, you
must first ask each party diagnostic questions. This kind of question
extract all this valuable information from the parties so that you can
begin to consider solutions that serve each partys interests and
address each partys concerns. During problem-solving, reinforce the
psychology of the settlement event by keeping the momentum
going, keeping things positive, reminding them of the time
constraints, and reinforcing the agreements so far. The parties will
begin to believe a settlement should and will happen, which is
powerful motivation for resolution.

Questioning

One technique that can enhance the mediator's neutrality is skilled

questioning. Question-asking can be used to elicit the crucial facts of
the case, uncover emotional currents, and clarify the conflict's
narrative. When used properly it can also increase the chances for a
satisfactory outcome. The mediator can use question-asking to help
parties express facts and feelings regarding the dispute. Appropriate
questioning can follow the format of interviewing which contains four
basic question types: open, closed, probing, and leading. Open-
ended questions are broad and have few restrictions on the
recipient's choice of responses. Open questions allow a party to
communicate his or her perception of the situation. Open questions
can have two major impacts on the process. They can encourage the
parties to engage the conflict and can empower the parties to craft
their own unique solutions. These types of questions are considered
appropriate or "process enhancing" because they encourage the
parties to open up, express the facts of the conflict, and articulate
their feelings. Closed questions, once the basic information has
been expressed, the mediator can begin to use closed questions to
narrow the scope of the responses. Closed questions can be
answered with yes or no, or in a very few words. The mediator can
also use closed questions to regain control over the
process. Probing questions, to further encourage a party to provide
specifics, the mediator can use probing questions to uncover
important feelings and information. Probing questions use such words
as why and how so. This type of questioning encourages the speaker
to provide in-depth responses to information that has already been
provided. Finally, leading questions might be used to move the
mediation in a positive direction. Leading questions are ones in which
the question suggests the answer. The mediator must be cautious
about injecting his or her opinions regarding the conflict through
leading questions and, as such, they should be used strictly to
facilitate the process. Of the four question types, this one is the least
used and should probably be limited to caucus situations.
Alternatively, poor questioning techniques can discourage agreement
by putting the parties on the defensive or ignoring unspoken needs.
The mediator must always be aware of the impact his or her
questions will have on the parties and be prepared to handle the
responses. By avoiding biased or judgmental questions, the mediator
can maintain neutrality and the integrity of the process.

Non-Defensive Response

Response that is assertive, direct and powerful. The person who

communicates non-defensively may be characterized as centered,
assertive, controlled, informative, realistic, and honest. It helps
reduce adverse responses, such as blame and anger. We are using
non-defensive communication when we ask questions, make
statements and predict consequences in an open, sincere way
without trying to control how other people respond. Non-defensive
responses aim to break the cycle of attack and defend often
prevalent in conflict situations. The object is to ask for clarification
without becoming defensive. We can gather accurate information,
speak with clarity, protect ourselves, and hold others more
accountable. People are more likely to respect us and we can
strengthen personal and professional relationships. Non-defensive
responses help to neutralize a verbal attack because they seldom
give the speaker anything further to attack with or defend. Tone of
voice and other no-verbal expressions play a critical role in our
success at using non-defensive responses.

Prepared by:

Dewmabel R. Baconawa
BL-2