Romeo Padilla School of Education & Arts

BSE Major in English I

DISPUTE RESOLUTION AND CRISIS MANAGEMENT

CONFLICT

A. CONFLICT

- A conflict is an activity which takes place when conscious beings (individuals or

groups) wish to carry out mutually inconsistent acts concerning their wants, needs

or obligations. (Nicholson, M., 1992)

- Conflict may also refer to a natural disagreement or struggle between people

which may be physical, or between conflicting ideas. It can either be within one

person, or they can involve several people or groups. It exists when they have

incompatible goals and one or more believe that the behavior of the other
prevents them from their own goal achievement.

- The word “Conflict” comes from the Latin word “conflingere” which means to

come together for a battle.

B. CONFLICT THEORIES

1. Conflict Theory

- Conflict theory, first developed by Karl Marx, is a theory that society is in a

state of perpetual conflict because of competition for limited resources.

- Conflict theory holds that social order is maintained by domination and power,

rather than by consensus and conformity. According to conflict theory, those

with wealth and power (bourgeoisie) try to hold on to it by any means possible,

chiefly by suppressing the poor and powerless (proletariat).

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- A basic premise of conflict theory is that individuals and groups within society will

work to try to maximize their own wealth and power.

2. Feminist Theory

- Feminist theory, or feminism, is a historically women-led movement that calls for

an end to sexism in all forms. Feminists strive for social justice for those who

have been oppressed by the patriarchy, a system of power dominated by men in

society.

3. Critical Race Theory

- Critical race theory is an intellectual movement and a framework of legal analysis

according to which:

o Race is a culturally invented category used to oppress people of colour and;

o The law and legal institutions in the United States are inherently racist

insofar as they function to create and maintain social, political, and

economic inequalities between white and nonwhite people.

C. FIVE CONFLICT RESOLUTION STRATEGY

- Researchers Kenneth Thomas and Ralph Kilmann developed a model for resolving

conflicts. This model is known as the Thomas-Kilmann model.

- Conflict occurs whenever people disagree. The disagreement could be over their

perceptions, ideas, values, motivations, or desires.

- This model is based on two dimensions of conflict management: assertiveness and

empathy.

- Assertiveness refers to the ability to speak up and stand by your opinions. It can

be used either positively or negatively, depending on its application. While

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assertive behavior may seem aggressive, it is actually a way of expressing yourself

effectively.

- Empathy means understanding another person's point of view and feelings. When

you empathize with someone else, you're able to put yourself into that other

person's situation. As a result, you'll find ways to resolve the conflict more easily.

- Based on these two dimensions, there are five conflict resolution

strategies: Competing, Avoiding, Accommodating, Collaborating and

Compromising.

C.1 THE FIVE CONFLICT RESOLUTION STRATEGIES

These are the 5 options in conflict resolution in the Thomas-Kilmann model.

1. Competing.

- The Competing option is at the top left of the model which means you take a wholly

assertive and uncooperative approach to resolving the conflict. It means standing

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up for your rights, defending a position which you believe is correct, or simply

trying to beat the other side.

2. Accommodating.

- The Accommodating option is at the bottom right of the model which means you

take a wholly unassertive and cooperative approach. This might take the form of

selfless generosity or charity, giving in to another person's orders when you would

prefer not to, or yielding to another's point of view.

3. Avoiding.

- The Avoiding option is at the bottom left of the model which means you take an

unassertive and uncooperative approach to the conflict and don't deal with it.

Avoiding might take the form of diplomatically sidestepping an issue, postponing an

issue until a better time, or simply withdrawing from a threatening situation.

4. Compromising.

- The Compromising option is at the centre of the model because it is both assertive

and cooperative but only to some extent. It's the approach of "half a sixpence is

better than none". Both sides get something but not everything. It might mean

splitting the difference between the two positions, some give and take, or seeking

a quick solution in the middle ground.

5. Collaborating.

- The Collaborating option is at the top right of the model and is at the opposite

extreme of avoiding. It means being willing to believe that when two parties are at

loggerheads, it is possible for both sides to come out with what they want.

Collaborating requires developed conflict resolution skills based on mutual respect,

a willingness to listen to others, and creativity in finding solutions.

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C.2 PROPER TIMING AND SITUATIONAL USE OF CONFLICT RESOLUTION

STRATEGIES

1. Strategy # 1: Competing

When to use it:

When you have to stand up for yourself, your rights, or your morals.
When a less forceful conflict management style is ineffective.
When nothing else is working and you have reached your last resort.

2. Strategy # 1: Accommodating

When to use it:

When you are wrong.
When you don’t care about the issue as much as the other person.
When you want the workplace to be peaceful.
When there is no point in arguing.

3. Strategy # 1: Avoiding

When to use it:

When the conflict is meaningless.
When you don’t have the time to manage the conflict.
When you aren’t sure how you feel about the issue yet.

4. Strategy # 1: Compromising

When to use it:

When reaching a solution is more important than the solution itself.
When you need a temporary solution.
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When you are at a standstill.

5. Strategy # 1: Collaborating

When to use it:

When the relationship is important.
When the final solution will have a significant impact.
When the interests, needs, and beliefs of all involved people need to be considered.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

1. REPUBLIC ACT NO. 9285

- This Act is known as the "Alternative Dispute Resolution Act of 2004."

2. POLICY OF THE STATE REGARDING ALTERNATIVE DISPUTE RESOLUTION (ADR)

- It is hereby declared the policy of the State to actively promote party autonomy in the

resolution of disputes or the freedom of the party to make their own arrangements to

resolve their disputes.

- Towards this end, the State shall encourage and actively promote the use of

Alternative Dispute Resolution (ADR) as an important means to achieve speedy and

impartial justice and de-clog court dockets.

- As such, the State shall provide means for the use of ADR as an efficient tool and an

alternative procedure for the resolution of appropriate cases.

- Likewise, the State shall enlist active private sector participation in the settlement of

disputes through ADR.

3. DOES RA 9285 LIMITS THE POWER OF THE SUPREME COURT TO ADOPT ANY ADR

SYSTEM?
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- No.

- This Act shall be without prejudice to the adoption by the Supreme Court of any ADR

system, such as mediation, conciliation, arbitration, or any combination thereof as a

means of achieving speedy and efficient means of resolving cases pending before all

courts in the Philippines which shall be governed by such rules as the Supreme Court may

approve from time to time. (Sec. 2, RA 9285)

4. ALTERNATIVE DISPUTE RESOLUTION

- Alternative Dispute Resolution System means any process or procedure used to resolve

a dispute or controversy, other than by adjudication of a presiding judge of a court

or an officer of a government agency.

- As defined under RA 9285, in which a neutral third party participates to assist in the

resolution of issues, which includes arbitration, mediation, conciliation, early neutral

evaluation, mini-trial, or any combination thereof. (Sec. 3, par. a, RA 9285)

5. ARBITRATION

- Arbitration means a voluntary dispute resolution process in which one or more

arbitrators, appointed in accordance with the agreement of the parties, or rules

promulgated pursuant to RA 9285, resolve a dispute by rendering an award. (Sec. 3, par. d,

RA 9285)

- Note: Award means any partial or final decision by an arbitrator in resolving the issue or

controversy.

6. ARBITRATOR

- Arbitrator means the person appointed to render an award, alone or with others, in a

dispute that is the subject of an arbitration agreement. (Sec. 3, par. e, RA 9285)

7. EARLY NEUTRAL EVALUATION

- This means an ADR process wherein parties and their lawyers are brought together

early in a pre-trial phase to present summaries of their cases and receive a nonbinding
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assessment by an experienced, neutral person, with expertise in the subject in the

substance of the dispute. (Sec. 3, par. n, RA 9285)

- Note: Non-binding assessment / non-binding expert evaluation is the appraisal and giving

of advice as to the facts of the dispute, the law and, in some cases, possible or desirable

outcomes by an ARD Practitioner with expertise in the subject matter of the dispute.

8. MEDIATION

- Mediation means a voluntary process in which a mediator, selected by the disputing

parties, facilitates communication and negotiation, and assist the parties in reaching a

voluntary agreement regarding a dispute. (Sec. 3, par. q, RA 9285)

9. MEDIATOR

- Mediator means a person who conducts mediation (Sec 3 par r RA 9285)

10. MEDIATION PARTY

- This means a person who participates in a mediation and whose consent is necessary to

resolve the dispute. (Sec. 3, par. s, RA 9285)

11. MEDIATION-ARBITRATION

- "Mediation-Arbitration" or Med-Arb is a step dispute resolution process involving both

mediation and arbitration. (Sec. 3, par. t, RA 9285)

12. MINI-TRIAL

- This means a structured dispute resolution method in which the merits of a case are

argued before a panel comprising senior decision makers with or without the presence of a

neutral third person after which the parties seek a negotiated settlement (Sec. 3, par. u,

RA 9285)

13. ARBITRATION, MEDIATION AND CONCILIATION

- Arbitration, mediation and conciliation are the main Alternative Dispute Resolution

Mechanism which is generally adopted by the people to resolve their disputes in an

informal manner.
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- They try to reach a solution by settlement or negotiation with the assistance of a third

neutral party and have turned out to be an effective alternative to the litigation process.

- Arbitration is a process where the parties submit their case to a neutral third party

who on the basis of discussion determine the dispute and comes to a solution.

- Mediation and conciliation both are an informal process. Whereas, arbitration is more

formal as compared to them.

- In mediation, the mediator generally sets out alternatives for the parties to reach out

an agreement. The main advantage of the mediation is that the settlement is made by

the parties themselves rather than a third party. It is not legally binding on the

parties. In addition, the basic motive of mediation is to provide opportunities to parties to

negotiate and come to a final solution catering the needs of both sides.

- Dispute resolution through conciliation involves the assistance of a neutral third party

who plays an advisory role in reaching an agreement.

- The process adopted by all the three are different but, the main purpose is to resolve

the dispute in a way where the interest of the parties is balanced.

14. ADR PROVIDER

- "ADR Provider" means institutions or persons accredited as mediator, conciliator,

arbitrator, neutral evaluator, or any person exercising similar functions in any

Alternative Dispute Resolution system.

- This is without prejudice to the rights of the parties to choose nonaccredited individuals

to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute. (Sec. 3,

par. b, RA 9285)

- List of ADR Providers in the Philippines:

https://www.doj.gov.ph/files/oadr/2022/(1)%20MEDIATORS%20(2).pdf

15. LIABILITY OF ADR PROVIDERS/PRACTITIONERS

- The ADR provides/practitioners shall have the same civil liability for acts done in the

performance of their official duties as that of public officers as provided in Section 38

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(1), Chapter 9, Book 1 of the Administrative Code of 1987, upon a clear showing of

bad faith, malice or gross negligence. (Article 1.5, IRR, RA 9285)

- Section 38 (1), Chapter 9, Book 1 of the Administrative Code of 1987 states that a ny

public officer who, without just cause, neglects to perform a duty within a period

fixed by law or regulation, or within a reasonable period if none is fixed, shall be

liable for damages to the private party concerned without prejudice to such other

liability as may be prescribed by law.

- Section 38 (1), Chapter 9, Book 1 of the Administrative Code of 1987 also states that the

head of a department or a superior officer shall not be civilly liable for the wrongful

acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has

actually authorized by written order the specific act or misconduct complained of.

- The administrative Code of the Philippines:

https://chanrobles.com/administrativecodeofthephilippines2.htm

16. WHAT ARE THE CASES WHEREIN REPUBLIC ACT NO. 9285 DOES NOT APPLY?

- The provisions of RA 92856 shall not apply to resolution or settlement of the following:

a. Labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor

Code of the Philippines, as amended and its Implementing Rules and Regulations;

b. The civil status of persons;

c. The validity of a marriage;

d. Any ground for legal separation;

e. The jurisdiction of courts;

f. Future legitime;

g. Criminal liability;

h. Those which by law cannot be compromised; and

i. Those disputes referred to court-annexed mediation. (Article 1.3, IRR, RA 9285)

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THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION

1. Office for Alternative Dispute Resolution

- The Office for Alternative Dispute Resolution (OADR) is as an agency attached to the

Department of Justice.

- It shall have a Secretariat and shall be headed by an Executive Director, who shall be

appointed by the President of the Philippines, taking into consideration the

recommendation of the Secretary of Justice. (Article 2.1., IRR, RA 9285)

2. POWERS OF THE OADR

- The OADR shall have the following powers:

a. To act as appointing authority of mediators and arbitrators when the parties agree

in writing that it shall be empowered to do so;

b. To conduct seminars, symposia, conferences and other public fora and publish

proceedings of said activities and relevant materials/information that would promote,

develop and expand the use of ADR;

c. To establish an ADR library or resource center where ADR laws, rules and

regulation, jurisprudence, books, articles and other information about ADR in the

Philippines and elsewhere may be stored and accessed;

d. To establish training programs for ADR providers/practitioners, both in the public

and private sectors; and to undertake periodic and continuing training programs for

arbitration and mediation and charge fees on participants. It may do so in conjunction

with or in cooperation with the Integrated Bar of the Philippines (IBP), private ADR
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organizations, and local and foreign government offices and agencies and international

organizations;

e. To certify those who have successfully completed the regular professional training

programs provided by the OADR;

f. To charge for services rendered such as, among others, for training and

certifications of ADR providers;

g. To accept donations, grants and other assistance from local and foreign sources; and

h. To exercise such other powers as may be necessary and proper to carry into effect

the provisions of the ADR Act. (Art. 2.2., IRR, RA 9285)

3. FUNCTIONS OF OADR

- The OADR shall have the following functions:

a. To promote, develop and expand the use of ADR in the private and public sectors

through information, education and communication;

b. To monitor, study and evaluate the use of ADR by the private and public sectors

for purposes of, among others, policy formulation;

c. To recommend to Congress needful statutory changes to develop, strengthen and

improve ADR practices in accordance with international professional standards;

d. To make studies on and provide linkages for the development, implementation,

monitoring and evaluation of government and private ADR programs and secure

information about their respective administrative rules/procedures, problems

encountered and how they were resolved;

e. To compile a list or roster of foreign or international ADR providers/practitioners,

who have undergone training by the OADR, or by such training providers/institutions

recognized or certified by the OADR as performing functions in any ADR system. The

list or roster shall include the addresses, contact numbers, e-mail addresses, ADR

service/s rendered (e.g. arbitration, mediation) and experience in ADR of the ADR

providers/practitioners;
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f. To perform such other functions as may be assigned to it. (Art. 2.3., IRR, RA 9285)

4. DIVISIONS OF OADR

- The OADR shall have the following staff and service divisions, among others:

a. Secretariat – shall provide necessary support and discharge such other functions and

duties as may be directed by the Executive Director.

b. Public information and Promotion Division – shall be charged with the dissemination of

information, the promotion of the importance and public acceptance of mediation,

conciliation, arbitration or any combination thereof and other ADR forms as a means of

achieving speedy and efficient means of resolving all disputes and to help in the

promotion, development and expansion of the use of ADR.

c. Training Division – shall be charged with the formulation of effective standards for the

training of ADR practitioners; conduct of training in accordance with such standards;

issuance of certifications of training to ADR practitioners and ADR service providers who

have undergone the professional training provided by the OADR; and the coordination of

the development, implementation, monitoring and evaluation of government and private

sector ADR programs.

d. Records and Library Division – shall be charged with the establishment and

maintenance of a central repository of ADR laws, rules and regulations, jurisprudence,

books, articles, and other information about ADR in the Philippines and elsewhere. (Art.

2.4., IRR, RA 9285)

5. ADVISORY COUNCIL

- There is also created an Advisory Council composed of a representative from each of the

following:

a. Mediation profession;

b. Arbitration profession;

c. ADR organizations;
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d. IBP; and

e. Academe.

- The members of the Council, who shall be appointed by the Secretary of Justice upon the

recommendation of the OADR Executive Director, shall choose a Chairman from among

themselves. (Art. 2.5., IRR, RA 9285)

6. ROLE OF THE ADVISORY COUNCIL

- The Advisory Council shall advise the Executive Director on policy, operational and other

relevant matters.

- The Council shall meet regularly, at least once every two (2) months, or upon call by the

Executive Director. (Art. 2.6., IRR, RA 9285)

MEDIATION

1. TERMS APPLICABLE TO INTERNATIONAL COMMERCIAL ARBITRATION

a. Ad hoc Mediation means any mediation other than institutional or court-annexed.

b. Institutional Mediation means any mediation process conducted under the rules of a

mediation institution.

c. Court-Annexed Mediation means mediation process conducted under the auspices of the

court and in accordance with Supreme Court approved guidelines, after such court has

acquired jurisdiction of the dispute.

d. Court-Referred Mediation means mediation ordered by a court to be conducted in

accordance with the agreement of the parties when an action is prematurely commenced

in violation of such agreement.

e. Certified Mediator means a mediator certified by the Office for ADR as having

successfully completed its regular professional training program.

f. Mediation means a voluntary process in which a mediator, selected by the disputing party

voluntary agreement regarding a dispute.

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g. Mediation Party means a person who participates in a mediation and whose consent is

necessary to resolve the dispute. Mediator means a person who conducts mediation.

h. Non-Party Participant means a person, other than a party or mediator, who participates

in a mediation proceeding as a witness, resource person or expert. (Rule 2, par. B, IRR, RA

9285)

2. SCOPE OF APPLICATION OF THE IMPLEMENTING RULES

- These Rules apply to voluntary mediation, whether ad hoc or institutional, other than

court-annexed mediation and only in default of an agreement of the parties on the

applicable rules.

- These Rules shall also apply to all cases pending before an administrative or quasi-judicial

agency that are subsequently agreed upon by the parties to be referred to mediation.

(Article 3.1., IRR, RA 9285)

4. STATE POLICY ON MEDIATION

- In applying and construing the provisions of these Rules, consideration must be given to the

need to promote candor of parties and mediators through confidentiality of the

mediation process, the policy of fostering prompt, economical and amicable resolution

of disputes in accordance with principles of integrity of determination by the parties and

the policy that the decision-making authority in the mediation process rests with the

parties.

- A party may petition a court before which an action is prematurely brought in a matter

which is the subject of a mediation agreement, if at least one party so requests, not

later than the pre-trial conference or upon the request of both parties thereafter, to

refer the parties to mediation in accordance with the agreement of the parties. (Article

3.2., IRR, RA 9285)

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SELECTION OF A MEDIATOR

1. PARTIES RIGHT TO SELECT A MEDIATOR

- The parties have the freedom to select a mediator.

- The parties may request the Office for Alternative Dispute Resolution (OADR) to provide

them list or roster or the resumes of its certified mediators. The OADR may be

requested to inform the mediator of his/her selection. (Article 3.3., IRR, RA 9285)

2. MEDIATOR’S SPECIAL QUALIFICATIONS BY BACKGROUND OR PROFESSION

- As a Rule, ADR act does not require that a mediator shall have special qualifications by

background or profession UNLESS the special qualifications of a mediator are required

in the mediation agreement or by the mediation parties. (Sec. 13, RA 9285)

3. WAIVING PARTY’S RIGHT TO PARTICIPATE IN MEDIATION?

- A party may waive his right to participate in mediation except as otherwise provided in RA

9285, a party may designate a lawyer or any other person to provide assistance in the

mediation.

- A lawyer of this right shall be made in writing by the party waiving it.

- A waiver of participation or legal representation may be rescinded any time. (Sec. 14, RA

9285)

- Note: Rescind means to revoke or cancel

4. MEDIATOR BE REPLACED

- If the mediator selected is unable to act as such for any reason, the parties may, upon

being informed of such fact, select another mediator. (Article 3.4., IRR, RA 9285)

5. GROUNDS WHEREIN A MEDIATOR MAY REFUSE OR WITHDRAW

- A mediator may refuse from acting as such, withdraw or may be compelled to withdraw from

mediator proceedings under the following circumstances:

a. If any of the parties so requests the mediator to withdraw;

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b. The mediator does not have the qualifications, training and experience to enable

him/her to meet the reasonable expectations of the parties;

c. Where the mediator's impartially is in question;

d. If continuation of the process would violate an ethical standard;

e. If the safety of any of the parties would be jeopardized;

f. If the mediator is unable to provide effective services;

g. In case of conflict of interest; and

h. In any of the following instances, if the mediator is satisfied that:

 One or more of the parties is/are not acting in good faith;

 The parties' agreement would be illegal or involve the commission of a crime;

 Continuing the dispute resolution would give rise to an appearance of impropriety;

 Continuing with the process would cause significant harm to a non-participating

person or to the public; or

 Continuing discussion would not be in the best interest of the parties, their minor

children or the dispute resolution process. (Article 3.5., IRR, RA 9285)

ETHICAL CONDUCT OF A MEDIATOR

1. COMPETENCE

- It is not required that a mediator shall have special qualifications by background or

profession unless the special qualifications of a mediator shall:

a. maintain the continually upgrade his/her professional competence in mediation skills;

b. ensure that his/her qualifications, training and experience are known to and accepted

by the parties; and

c. serve only when his/her qualifications, training and experience enable him/her to

meet the reasonable expectations of the parties and shall not hold himself/herself

out or give the impression that he/she does not have.

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- Upon the request of a mediation party, an individual who is requested to serve as mediator

shall disclose his/her qualifications to mediate a dispute. (Article 3.5., IRR, RA 9285)

2. A MEDIATOR SHALL MAINTAIN IMPARTIALITY.

a. Before accepting a mediation, an individual who is requested to serve as a mediator shall:

 make an inquiry that is reasonable under the circumstances to determine whether

there are known facts that a reasonable individual would consider likely to affect

the impartiality of the mediator, including a financial or personal interest in the

outcome of the mediation and any existing or past relationship with a party of

foreseeable participant in the mediation; and

 disclose to the mediation parties any such fact known or learned as soon as

practical before accepting a mediation.

b. If a mediator learns any fact described in paragraph (a) of this Article after accepting a

mediation, the mediator shall disclose it as soon as practicable to the mediation parties.

(Article 3.7., IRR, RA 9285)

3. CONFIDENTIALITY

- A mediator shall keep in utmost confidence all confidential information obtained in the

course of the mediation process.

a. A mediator shall discuss issues of confidentiality and the extent of confidentiality

provided in any private sessions or caucuses that the mediator holds with a party.

(Article 3.8., IRR, RA 9285)

4. CONSENT AND SELF-DETERMINATION

- A mediator shall make reasonable efforts to ensure that each party understands the nature

and character of the mediation proceeding including private caucuses, the issues, the

available options, the alternatives to non-settlement, and that each party is free and able

to make whatever choices he/she desires regarding participation in mediation generally

and regarding specific settlement options.

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- If a mediator believes that a party, who is not represented by counsel, is unable to

understand, or fully participate, the mediation proceedings for any reason, a mediator may

either:

a. limit the scope of the mediation proceedings in a manner consistent with the party's

ability to participate, and/or recommend that the party obtain appropriate assistance

in order to continue with the process; or

b. terminate the mediation proceedings.

- A mediator shall recognize and put in mind that the primary responsibility of resolving a

dispute and the shaping of a voluntary and uncoerced settlement rests with the parties.

(Article 3.9., IRR, RA 9285)

- Separation of Mediation from Counseling and Legal Advice Except in evaluative mediation or

when the parties so request, a mediator shall:

a. refrain from giving legal or technical advice and otherwise engaging in counseling or

advocacy; and

b. abstain from expressing his/her personal opinion on the rights and duties of the

parties and the merits of any proposal made.

- Where appropriate and where either or both parties are not represented by counsel, a

mediator shall;

a. recommend that the parties seek outside professional advice to help them make

informed decision and to understand the implication of any proposal; and

b. suggest that the parties seek independent legal and/or technical advice before a

settlement agreement is signed.

c. without the consent of parties, and for a reasonable time under the particular

circumstance, a mediator who also practices another profession shall not establish a

professional relationship in that other profession with one of the parties, or any

person or entity, in a substantially and factually related matter. (Article 3.10., IRR, RA

9285)
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5. CHARGING OF FEES.

- With respect to charging of fees:

a. A mediator shall fully disclose and explain to the parties the basis of cost, fees and

charges.

b. The mediator who withdraws from the mediation shall return to the parties any

unearned fee and unused deposit.

c. A mediator shall not enter into a fee agreement, which is contingent upon the results of

the mediation or the amount of the settlement. (Article 3 11 IRR RA 9285)

6. PROMOTION OF RESPECT AND CONTROL OF ABUSE OF PROCESS.

- The mediator shall encourage mutual respect between the parties, and shall take reasonable

steps, subject to the principle of self-determination, to limit abuses of the mediation

process. (Article 3.12., IRR, RA 9285)

7. SOLICITATION OR ACCEPTANCE OF ANY GIFT.

- No mediator or any member of a mediator’s immediate family or his/her agent shall request,

solicit, receive or accept any gift or any type of compensation other than the agreed fee

and expenses in connection with any matter coming before the mediator. (Article 3.13.,

IRR, RA 9285)

ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT

1. OPERATIVE PRINCIPLES TO GUIDE MEDIATION

The mediation shall be guided by the following operative principles:

a. A settlement agreement following successful mediation shall be prepared by the parties

with the assistance of their respective counsels. If any, and by the mediator. The parties

and their respective counsels shall endeavor to make the terms and condition of the
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settlement agreement complete and to make adequate provision for the contingency of

breach to avoid conflicting interpretations of the agreement.

b. The parties and their respective counsels, if any, shall sign the settlement agreement. The

mediator shall certify that he/she explained the contents of the settlement agreement to

the parties in a language known to them.

c. If the parties agree, the settlement agreement may be jointly deposited by the parties or

deposited by one party with prior notice to the other party/ties with the Clerk of Court of

the Regional Trial Court:

 where the principal place of business in the Philippines of any of the parties is

located;

 if any of the parties is an individual, where any of those individuals resides; or

 in the National Capital Judicial Region.

Where there is a need to enforce the settlement agreement, a petition may be filed by

any of the parties with the same court in which case, the court shall proceed summarily to

hear the petition, in accordance with the Special ADR Rules.

d. The parties may agree in the settlement agreement that the mediator shall become a sole

arbitrator for the dispute and shall treat the settlement agreement as an arbitral award

which shall be subject to enforcement under Republic Act No. 876, otherwise know as "The

Arbitration Law", notwithstanding the provisions of Executive Order No. 1008, s. 1985,

otherwise known as the "Construction Industry Arbitration Law" for mediated disputes

outside the Construction Industry Arbitration Commission. (Article 3.20., IRR, RA 9285)

CONFIDENTIALITY OF INFORMATION

What are the principles and guidelines on the information obtained through Mediation
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Information obtained through mediation proceedings shall be subject to the following principles

and guidelines:

a. Information obtained through mediation shall be a privileged and confidential.

b. A party, mediator, or non-party participant may refuse to disclose and may prevent any

other person from disclosing a confidential information.

c. Confidential information shall not be subject to discovery and shall be inadmissible in any

adversarial proceeding, whether judicial or quasi-judicial. However, evidence or

information that is otherwise admissible or subject to discovery does not become

inadmissible or protected from discovery solely by reason of its use in a mediation.

d. In such an adversarial proceeding, the following persons involved or previously involved in

a mediation may not be compelled to disclosed confidential information obtained during

the mediation:

 the parties to the dispute;

 the mediator or mediators;

 the counsel for the parties;

 the non-party participants;

 any person hired or engaged in connection with the mediation as secretary,

stenographer, clerk or assistant; and

 any other person who obtains or possesses confidential information by reason

of his/her profession.

e. The protections of the ADR Act shall continue to apply even if a mediator is found to have

failed to act impartially.

f. A mediator may not be called to testify to provide confidential information gathered in

mediation. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of

his/her attorney’s fees and related expenses. (Article 3.21., IRR, RA 9285)
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WAIVING PRIVILEGE OF CONFIDENTIALITY OF INFORMATION

Under the following circumstances, a privilege of confidentiality of information is deemed

waived:

a. A privilege arising from the confidentiality of information may be waived in a record or

orally during a proceeding by the mediator and the mediation parties.

b. With the consent of the mediation parties, a privilege arising from the confidentiality of

information may likewise be waived by a non-party participant if the information is

provided by such non-party participant.

c. A person who discloses confidential information shall be precluded from asserting the

privilege under Article 3.21 (Confidentiality of Information) to bar disclosure of the rest

of the information necessary to a complete understanding of the previously disclosed

information. If a person suffers loss or damage as a result of the disclosure of the

confidential information, he/she shall be entitled to damages in a judicial proceeding

against the person who made the disclosure.

d. A person who discloses or makes a representation about a mediation is precluded from

asserting the privilege mentioned in Article 3.21 to the extent that the communication

prejudices another person in the proceeding and it is necessary for the person prejudiced

to respond to the representation or disclosure. (Article 3.22., IRR, RA 9285).

EXCEPTIONS TO THE PRIVILEGE OF CONFIDENTIALITY OF INFORMATION

1. Article 3.21 in the following instances:

a. in an agreement evidenced by a record authenticated by all parties to the agreement;

b. available to the public or made during a session of a mediation which is open, or is

required by law to be open, to the public;

c. a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

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d. intentionally used to plan a crime, attempt to commit, or commit a crime, or conceal

an ongoing crime or criminal activity.

e. sought or offered to prove or disprove abuse, neglect, abandonment or exploitation

in a proceeding in which a public agency is protecting the interest of an individual

protected by law; but this exception does not apply where a child protection matter is

referred to mediation by a court or where a public agency participates in the child

protection mediation;

f. sought or offered to prove or disapprove a claim or complaint of professional

misconduct or malpractice filed against a party, non-party participant, or

representative of a party based on conduct occurring during a mediation.

2. If a court or administrative agency finds, after a hearing in camera, that the party seeking

discovery of the proponent of the evidence has shown that the evidence is not otherwise

available, that there is a need for the evidence that substantially outweighs the interest in

protecting confidentially, and the mediation communication is sought or offered in:

a. a court proceeding involving a crime or felony; or

b. a proceeding to prove a claim or defense that under the law is sufficient to reform or

avoid a liability on a contract arising out of the mediation.

3. A mediator may not be compelled to provide evidence of a mediation communication or testify

in such proceeding.

4. If a mediation communication is not privileged under an exception in sub-section (a) or (b)

hereof, only the portion of the communication necessary for the application of the exception

for non-disclosure may be admitted. The admission of a particular evidence for the limited

purpose of an exception does not render that evidence, or any other mediation

communication, admissible for any other purpose. (Article 3.23., IRR, RA 9285).

CONDUCT OF ARBITRAL PROCEEDINGS

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Discuss the conduct of Arbitral proceedings.

1. The parties shall be treated with equality and each shall be given a full opportunity of

presenting his/her case. (Article 4.18., IRR, RA 928)

2. On Determination of the Rules of Procedures

a. Subject to the provisions of this Chapter, the parties are free to agree on the

procedure to be followed by the arbitral tribunal in court the proceedings.

b. Falling such agreement, the arbitral tribunal may, subject to this Chapter, conduct the

arbitration in such manner as it considers appropriate, Unless the arbitral tribunal

considers it inappropriate, the UNCITRAL Arbitration Rules adopted by the UNCITRAL

on 28 April 1976 UN General Assembly on 15 December 1976 shall apply subject to the

following clarification: All references to the "Secretary-General Permanent Court of

Arbitration at the Hague" shall be deemed to refer to the appointing authority.

c. The power conferred upon the arbitral tribunal includes the power to determine

the admissibility, relevance, materiality and weight of evidence. (Article 4.19., IRR,

RA 9285)

3. On Venue of Arbitration

a. The parties are free to agree on the place of arbitration. Failing such agreement, the

place of arbitration shall be in Metro Manila arbitral tribunal, having regard to the

circumstances of the case, including the convenience of the parties, shall decide on a

different arbitration.

b. Notwithstanding the rule stated in paragraph (a) of this provision, the arbitral tribunal

may, unless otherwise agreed by the parties, any place it considers appropriate for

consultation among its members, for hearing witnesses, experts or the parties, or for

inspe goods, other property or documents. (Article 4.20., IRR, RA 9285)

4. On the Commencement of Arbitral Proceedings

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Unless otherwise agreed by the parties, the arbitral proceedings in respect of a

particular dispute commence on the date on which a for that dispute to be referred

to arbitration is received by the respondent. (Article 4.21., IRR, RA 9285)

5. On the Language to be Used

a. The parties are free to agree on the language or languages to be used in the

arbitral proceedings. Failing such agreement language to be used shall be English.

This agreement, unless otherwise specified therein, shall apply to any written

statement party, any hearing and any award, decision or other communication by

the arbitral tribunal.

b. The arbitral tribunal may order that any documentary evidence shall be

accompanied by a translation into the language or languages agreed upon by the

parties or determined by the arbitral tribunal in accordance with paragraph (a) of

this Article. (Article 4.22 RA 9285)

2. On the Statements of Claim and Defense

a. Within the period of time agreed by the parties or determined by the arbitral

tribunal, the claimant shall state the facts summing his/her/its claim, the points

at issue and the relief or remedy sought, and the respondent shall state

his/her/its defense in res these particulars, unless the parties have otherwise

agreed as to the required elements of such statements. The parties may with

their statements, all documents they consider to be relevant or may add a

reference to the documents or other evidence submit.

b. Unless otherwise agreed by the parties, either party may amend or supplement

his/her claim or defense during the course arbitral proceedings, unless the

arbitral tribunal considers it inappropriate to allow such amendment having regard

to the making it. (Article 4.23., IRR, RA 9285)

3. On Hearing and Written Proceedings

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a. Subject to any contrary agreement by the parties, the arbitral tribunal shall

decide whether to hold oral hearings for the presentation of evidence or for oral

argument, or whether the proceedings shall be conducted on the basis of

documents and other matters.

However, unless the parties have agreed that no hearings at an appropriate stage

of the proceedings, if so requested by a party.

b. The parties shall be given sufficient advance notice of any hearing and of any

meeting of the arbitral tribunal for the purpose of inspection goods, other

property or documents.

c. All statements, documents or other information supplied to the arbitral by one

party shall be communicated to the other party. Expert report or evidentiary

document on which the arbitral tribunal may rely in making its decision shall be

communicate parties. (Article 4.24., IRR, RA 9285)

8. On Default of a party

Unless otherwise agreed by the parties, if, without, showing sufficient cause,

a. the claimant fails to communicate his statement of claim in accordance with

paragraph (a) Article 4.23 (Statement of Cl Defense), the arbitral tribunal

shall terminate the proceedings;

b. the respondent fails to communicate his/her/its statement of defense in

accordance with paragraph (a) Article 4.23 (Statement and Defense), the

arbitral tribunal shall continue the proceedings without treating such failure

in itself as an admission of the claim allegations.

c. any party’s fails to appear at a hearing or to produce documentary evidence,

the arbitral tribunal may continue the proceeding and make the award on the

evidence before it. (Article 4.25., IRR, RA 9285)

9. On Expert appointed by the Arbitral Tribunal

Unless otherwise agreed by the parties, the arbitral tribunal,

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a. may appoint one or more experts to report to it on specific issues to be

determined by the arbitral tribunal; or

b. may require a party to give the expert any relevant information or to produce,

or to provide access to, any relevant document or other property for his/her

inspection.

c. Unless otherwise agreed by the parties, if a party so requests or if the

arbitral tribunal considers it necessary, the expert shall make delivery of

his/her written or oral report, participate in a hearing where the parties have

the opportunity to put questions to him present expert witnesses in order to

testify on the points at issue. (Article 4.26., IRR, RA 9285)

10. On Court Assistance in Taking Evidence 6 0

a. The arbitral tribunal or a party with the approval of the arbitral tribunal may request

from a court of the Philippines assistance in evidence. The court may execute the request

within its competence and according to its rules on taking evidence.

b. The arbitral tribunal shall have the power to require any person to attend a hearing as a

witness.

c. The arbitral tribunal shall have the power to subpoena witnesses and documents when the

relevancy of the testimony and the materiality thereof has been demonstrated.

d. The arbitral tribunal may also require the retirement of any witness during the testimony

of any other witness.

e. A party may bring a petition under this Section before the court in accordance with the

Rules of Court or the Special ADR Rule 4.27., IRR, RA 9285)

11. On Rules Applicable to the Substance of Dispute

a. The arbitral tribunal shall decide the dispute in accordance with such rules of law as are

chosen by the parties as applicable substance of the dispute. Any designation of the law
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or legal system of a given state shall be construed, unless otherwise expressed as

directly referring to the substantive law of that state and not its conflict of laws rules.

b. Failing any designation by the parties, the arbitral tribunal shall apply the law determined

by the conflict of laws rules, considers applicable.

c. The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the

parties have expressly authorized it to

d. In all cases, the arbitral tribunal shall decide in accordance with the terms of the

contract and shall take into account the usage trade applicable to the transaction.

(Article 4.28., IRR, RA 9285)

12. Decision-making by Panel of Arbitrators

In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal

shall be made, unless otherwise agreed by other parties, by a majority of all its members.

However, questions of procedure may be decided by a presiding arbitrator, if so authorized

parties or all members of the arbitral tribunal. (Article 4.29., IRR, RA 9285)

13. Settlement

If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall

terminate the proceedings and, if requested by the parties and not objected to by the

arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.

An award on agreed terms shall be made in accordance with the provisions of Article 4.31

(Form and Contents of Award), a

state that it is an award. Such an award has the same status and effect as any other award

on the merits of the case. (Article 4.30.,

9285)

14. On Forum and Contents of Award

a. The award shall be made in writing and shall be signed by the arbitrator or

arbitrators. In arbitral proceedings with more t arbitrator, the signatures of the

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majority of all members of the arbitral tribunal shall suffice, provided that the

reason for any signature is stated.

b. The award shall state the reasons upon which it is based, unless the parties have

agreed that no reasons are to be given or that is an award on agreed terms under

paragraph (a) of Article 4.20 (Place of Arbitration).

c. The award shall state its date and the place of arbitration as determined in

accordance with paragraph (a) of this Article. Th shall be deemed to have been made

at that place.

d. After the award is made, a copy signed by the arbitrators in accordance with

paragraph (a) of this Article shall be delivered to the party. (Article 4.31., IRR, RA

9285)

15. On termination of Proceedings

a. The arbitral proceedings are terminated by the final award or by an order of the

arbitral tribunal

b. The arbitral tribunal shall issue an order for the termination of the arbitral

proceedings when:

• The claimant withdraws his/her/its claim, unless the respondent objects

thereto and the arbitral tribunal recognizes legitimate interest on his/her/its

part in obtaining a final settlement of the dispute;

• The parties agree the termination of the proceedings;

• The arbitral tribunal finds that the continuation of the proceedings has for

any other reason become unnece impossible.

c. The mandate of the arbitral tribunal ends with termination of the arbitral

proceedings subject to the provisions of Artic (Correction and Interpretation of

Award, Additional Award) and paragraph (d) of Articles 4.34 (Application for Setting

an Exclusive Recourse against Arbitral Award).

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d. Notwithstanding the foregoing, the arbitral tribunal may, for special reasons, reserve

in the final award or order, a hearing to costs and determine which party shall bear

the costs or the division thereof as may be determined to be equitable. determination

of this issue, the award shall not be deemed final for purposes of appeal, vacation,

correction, or any pos proceedings. (Article 4.32., IRR, RA 9285)

16. On Correction and Interpretation of Award, Additional Award

a. Within thirty (30) days from receipt of the award, unless another period of time has

been agreed upon by the parties:

• A party may, with notice to the other party, request the arbitral tribunal to

correct in the award any errors in computation, clerical or typographical

errors or any errors of similar nature;

• A party may, it so agreed by the parties and with notice to the other party,

request the arbitral tribunal to interpretation of a specific point or part of

the award.

b. If the arbitral tribunal considers the request to be justified, it shall make the

correction or give the interpretation within thirty (30) days from receipt of the

request. The interpretation shall form part of the award.

c. The arbitral tribunal may correct any error of the type referred to in paragraph (a)

of this Article on its own initiative within thirty from the date of the award.

d. Unless otherwise agreed by the parties, a party may, with notice to the other party,

request, within thirty (30) days receipt of the arbitral tribunal to make an additional

award as to claims presented in the arbitral proceedings but omitted from the

awarding arbitral tribunal considers the request to be justified, it shall make the

additional award within sixty (60) days.

e. The arbitral tribunal may extend, if necessary, the period of time within which it shall

make a correction interpretation or an a award under paragraphs (a) and (b) of this

Article.
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17. Application for Setting an Exclusive Course of Action Against Arbitral Award

a. Recourse to a court against an arbitral award may be made only by application for setting

aside in accordance with second a paragraphs of this article.

b. An arbitral award may be set aside by the Regional Trial Court only If:

 the party making the application furnishes proof that:

 a party to the arbitration agreement was under some incapacity; or the said

agreement is not valid under the law to w parties have subjected it or, failing

any indication thereon, under the law of the Philippines; or

 the party making the application was not given proper notice of the

appointment of an arbitrator or of the arbitral process was otherwise unable

to present his case; or

 the award deals with a dispute not contemplated by or not failing within the

terms of the submission to arbitration, or c decisions on matters beyond the

scope of the submission to arbitration, provided that, if the decisions on

matters sub arbitration can be separated from those not so submitted, only

the part of the award which contains decisions on ma submitted to arbitration

may be set aside; or

 the composition of the arbitral tribunal or the arbitral procedure was not in

accordance with the agreement of the parties such agreement was in conflict

with a provision of ADR Act from which the parties cannot derogate, or, falling

such ag was not in accordance with ADR Act; or

 the Court finds that:

 the subject-matter of the dispute is not capable of settlement by arbitration

under the law of the Philippines; or

 the award is in conflict with the public policy of the Philippines.

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c. An application for setting aside may not be made after three months have elapsed from the

date on which the party had received the award or, If a request had been made under

Article 4.33 (Correction and Interpretation of Additional Award) from the date on which

that request has been disposed of by the Arbitral tribunal

d. The court, when asked to set aside an award, may, where appropriate and so requested by a

party, suspend the setting of proceedings for a period of time determined by it in order to

give the arbitral tribunal an opportunity resume the arbitral proceed to take such other

action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

A party may bring a petition under this Article before the court in accordance with the

Special ADR Rules. (Article 4.34., IRR)

RECOGNITION AND ENFORCEMENT OF AWARDS

1. Rules on recognition and enforcement

The Rules on recognition and enforcement are as follows:

a. A foreign arbitral award shall be recognized as binding and, upon petition in writing to

the regional trial Court, shall be enforced the provisions of this Article and of Article

4.36 (Grounds for Refusing Recognition or Enforcement).

b. The petition for recognition and enforcement of such arbitral awards shall be filled with

the Regional trial Court In accordance with ADR Rules.

1. Convention Award - The New York Convention shall govern the recognition

and enforcement of arbitral awards covered Convention. The petitioner

shall establish that the country in which the foreign arbitration award was

made is a party to the UN Convention.

2. Non-Convention Award – The recognition and enforcement of foreign

arbitral awards not covered by the New York Convention done in

accordance with procedural rules to be promulgated by the Supreme Court.

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The court may, on grounds of co reciprocity, recognize and enforce a non-

convention award as a convention award.

c. The party relying on an award or applying for its enforcement shall file with the

Regional Trial Court the original or duly authenticated copy of the award and the original

arbitration agreement or a duly authenticated copy thereof. If the award or agreement

is not made in a language of the Philippines, the party shall supply a duly certified

translation thereof into such language.

d. A foreign arbitral award when confirmed by a court of a foreign country, shall be

recognized and enforced as a foreign arbitral award as a judgment of a foreign court.

e. A foreign arbitral award when confirmed by the Regional Trial Court, shall be enforced

in the same manner as final and executory d of courts of law of the Philippines.

f. If the Regional Trial Court has recognized the arbitral award but an application for

rejection and/or) suspension of enforcement of the award is subsequently made, the

Regional Trial Court may, if it considers the application to be proper, vacate or suspend

the decision to that award and may also, on the application of the party claiming

recognition or enforcement of that award, order the other party rejection or

suspension to provide appropriate security. (Article 4.35., IRR, RA 9285)

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ROLE OF PARTIES AND THEIR COUNSELS IN MEDIATION

1. MAY A PARTY DESIGNATE A LAWYER TO ASSIST HIM IN MEDIATION?

- Yes, except as otherwise provided by the ADR Act or by their Rules, a party may designate a

lawyer or any other person to provide assistance in the mediation.

- A waiver of this right shall be made in writing by the party waiving it.

- A waiver of participation or legal representation may be rescinded at any time. (Article 3.14.,

IRR, RA 9285)

2. ROLES OF A COUNSEL IN MEDIATION PROCEEDINGS

a. The lawyer shall view his/her role in the mediation as a collaborator with the other

lawyer in working together toward the common goal of helping their clients resolve their

differences to their mutual advantage.

b. The lawyer shall encourage and assist his/her client to actively participate in positive

discussions and cooperate in crafting an agreement to resolve their dispute.

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c. The lawyer must assist his/her client to comprehend and appreciate the mediation

process and its benefits, as well as the client’s greater personal responsibility for the

success of mediation in resolving the dispute.

d. d. In preparing for participation in mediation, the lawyer shall confer and discuss with

his/her client the following:

 The mediation process as essentially a negotiation between the parties assisted by

their respective lawyers, and facilitated by a mediator, stressing it its difference

from litigation, its advantages and benefits, the clients heightened role in

mediation and responsibility for its success and explaining the role of the lawyer

in mediation proceedings.

 The substance of the upcoming mediation such as;

 The substantive issues involved in the dispute and their prioritization in

terms of importance to his/her client’s real interests and needs.

 The study of other party’s position in relation to the issues with a view to

understanding the underlying interests, fears, concerns and needs;

 The information or facts to be gathered or sought from the other side or

to be exchanged that are necessary for informed decision-making;

 The possible options for settlement but stressing the need to be open-

minded about other possibilities; and

 The best, worst and most likely alternative to a non-negotiated

settlement. (Article 3.15., IRR, RA 9285)

3. OTHER MATTERS A COUNSEL MUST DO TO ASSIST IN THE MEDIATION?

a. To assist in the Mediation, the lawyer:

 shall give support to the mediator so that his/her client will fully understand the

rules and processes of mediation;

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 Shall impress upon his/her client the importance of speaking for himself/herself and

taking responsibility for making decisions during the negotiations within the

mediation process.;

 May ask for a recess in order to give advice or suggestions to his/her client in

private, if he/she perceives that his/her client is unable to bargain effectively; and

 shall assist his/her client and the mediator put in writing the terms of the

settlement agreement that the parties have entered into. That lawyers shall see to

it that the terms of the settlement agreement are not contrary to law, morals, good

customs, public order or public policy. (Article 3.16., IRR, RA 9285)

CONDUCT OF MEDIATION

1. WHAT ARE THE ARTICLES TO BE CONSIDERED IN THE CONDUCT OF MEDIATION?

- The articles to be considered in the conduct of Mediation are the following:

a. The mediator shall not make untruthful or exaggerated claims about the dispute

resolution process, its costs and benefits, its outcome or the mediator’s qualifications

and abilities during the entire mediation process.

b. The mediator shall hold the parties reach a satisfactory resolution to their dispute but

has no authority to impose a settlement on the parties.

c. The parties shall personally appear for mediation and may be assisted by a lawyer. A

party maybe represented by an agent who must have full authority to negotiate and

settle the dispute.

d. The mediation process shall, in general, consists of the following stages:

 opening statement of the mediator

 individual narration by the parties;

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 exchange by the parties;

 summary of issues;

 generation and evaluation of options; and

 closure

e. The mediation proceeding shall be held in private. Person, other than the parties, their

representatives and mediator, may attend only with the consent of all the parties,

f. The mediation shall be closed:

 by the execution of a settlement agreement by the parties;

 by the withdrawal of any party from mediation; and

 by the written declaration of the mediator that any further effort at mediation

would not be helpful. (Article 3.17., IRR, RA 9285)

2. WHERE IS THE PLACE OF MEDIATION?

- The parties are free to agree on the place of mediation. Failing such agreement, the place of

mediation shall be any place convenient and appropriate to all parties. (Article 3.18., IRR,

RA 9285)

EFFECT OF AGREEMENT TO SUBMIT A DISPUTE TO MEDIATION UNDER

INSTITUTIONAL RULES

1. WHAT DOES AN AGREEMENT TO SUBMIT A DISPUTE TO MEDIATOR BY AN

INSTITUTION INCLUDE?

- An agreement to submit a dispute to mediation by an institution shall include an agreement

to be bound by the internal mediation and administrative policies of such institution.

- Further, an agreement to submit a dispute to mediation under institutional mediation rules

shall be deemed to include an agreement to have such rules govern the mediation of the

dispute and for the mediator, the parties, their respective counsels and nonparty

participants to abide by such rules (Article 3 19 IRR RA 9285)

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INTRODUCTION TO CRISIS/ INCIDENT MANAGEMENT

CONCEPTS OF CRISIS AND EMERGENCY

CRISIS is a period of disorganization, period of upset during which people attempts at

arriving at solution of problems. It is a crucial or decisive point or situation; a turning point; an

unstable condition, as in political, social, or economic. It is a state provokes when a person faces

obstacles or hazards to an important life goal. The term Crisis is derived from the Greek word

“krisis” which means to separate; a turning point decision in a process of an affair or a series of
events.

EMERGENCY – is derived from the Latin word “emergencia” which means dipping/plugging.

A sudden condition or a state of affairs calling for an immediate action.

TYPES OF CRISIS

MAN-MADE CRISIS - civil disturbances - strike, riot, demonstration - revolt such as

mutiny and insurrection - revolution, border incident - war: conventional or nuclear – crimes:

kidnapping, hijacking, hostage-taking, etc

NATURAL CRISIS - fire, floods, earthquake, tidal waves - marine/air disaster,

hazardous spills, power failure, nuclear accidents - water/food shortage/scarcity, drought -

volcanic eruption, epidemic, etc.

INDIVIDUAL CRISIS – It refers to the feeling that arises when a person faces

unpleasant situation such as frustrations and conflicts. This includes:

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1. Physical Crisis – those that are related to health problems or bodily sickness/sufferings.

2. Economics Crisis – the deprivation of the basic necessities of life like food and material

things.

3. Emotional Crisis – when an individual is affected by negative feelings like emotional

disturbances, fear, etc.

4. Social Crisis – the experiencing lack of interest, confidence and social skills to relate

meaningful, harmonious relationship with others.

5. Moral Crisis – the person has an irrational or distorted concepts of what is right or

wrong, lack of moral values and integrity of the person.

6. Psychosexual Crisis – failure of the person to assume ones sex role and identity as a man

or woman. The person has an inappropriate sex objective, inadequate and distorted

expression of affection.

CRISIS MANAGEMENT defined

Crisis management is the proper utilization of all available resources and the formulation

of policies and procedures to effectively deal with progressive sequence of events (crisis) and

sudden or unforeseen state (emergency).

PURPOSES OF CRISIS MANAGEMENT

1. It sets concepts, policies and general procedures of handling crisis situation.

2. It guides and assist law enforcers in the formulation of crisis management contingency

plans and SOP’s to address crisis situations.

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“SALVARI VITAS” – To save lives

OBJECTIVES

 Resolve event without further incident

 Ensure the safety of all participant

 Apprehension of all perpetrators

 Accomplish the task within the framework of current community standards.

PRINCIPLES

 To achieve a successful negotiation, there must be a need to live on the part of the

hostage – taker and there must be a threat of force by the authorities

 Contain and negotiate

 Protect the innocent from harm

 Allow the passage of time so that the response force can evaluate the situation,

gather information, explore alternatives and formulate a plan of action

 Rely on the continuous flow of information from all sources

 Pressure the perpetrators into abandoning their position

 Receive, analyze and disseminate all information

 Prepare for rapidly escalating series of event

THE CRISIS MANAGEMENT DOCTRINE

This doctrine specifically addresses crisis situations arising out of the action of mentally

deranged individuals, criminals or terrorist elements that use violence or threat to pursue their

needs. Crisis envisioned to be covered under this doctrine include among others, hostage taking,
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sea jacking, hijacking, occupation of vital installation, ambush and arson, with the use of violence

or threat followed by blackmail, demands for ransom, safe-control, publicity and the like.

The crisis may start as basically police or special unit matter, but could develop in

proportion and dimension requiring further military operations. This doctrine also will not address

crisis when the purview and jurisdiction of the National Disaster Coordinating Council (NDCC),

Peace and order council, the Cabinet Crisis Committee or the National Security Council (NSC) and

other national committee which could be military, economic, political, social or combination

thereof, in nature. The general idea is to prevent the occurrence of a crisis, ensure a probability

of success in minimizing or neutralizing the perpetrator or to return the situation into normalcy.

NATIONAL POLICY

The Philippines subscribed to all international conventions and initiatives against

terrorism and will participate in all endeavors designed to strengthen international cooperation in

order to prevent and neutralize terrorist acts.

PNP/AFP POLICY

The PNP/AFP shall be guided by the national policy on terrorism and will strictly

implement it. The use of peaceful means shall always be employed. The AFP will not compromise

nor make concessions to terrorist even if involves the personnel or property. The AFP will act

promptly, decisively and effectively, choosing from the whole range of military actions

appropriate to the circumstances.

PHASES OF CRISIS MANAGEMENT

PRO-ACTIVE PHASES – is the stage of advance planning, organization and coordination

and control in response to an anticipated future crisis occurrence. This phase is designed to

predict or prevent probability or occurrence of the crisis while at the same time prepares to

handle them when they occur.

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1. PREDICTION - The first stage of anticipating future crisis occurrences through

the following;

 Update- Intelligence – involves the collection of information from variety of

sources as basis of actions and plan; those that are related to crisis

management contingency planning.

 Events – are those incidents that are already passed which can facilitate

analysis necessary for identification of probable threat groups, targets and

necessary for advance planning.

 Threat Analysis of Threat Groups

a. Political Terrorist – ideologically inspire individuals who grouped

together for a common purpose usually for change of government or

political power. Ex. CPP/NPA, SPT’s, etc.

b. Criminals – these are people who commit terrorist acts for personal

rather than ideological gains. Some of the terrorist acts such as

kidnapping are well planned, other are not planned, but happens as a

result of the fast response time by LEAs to an on going crime. For

instance, a number of bank robberies have evolved into unplanned

hostage situation when policemen arrive in response to an alarm robbery

is in progress.

c. Mentally Deranged Individuals – people commit terroristic acts during a

period of psychiatric disturbance. This type is the most difficult

terrorist to deal with. Many of them are impulsive and unpredictable.

2. PREVENTION - This pro-active phase considers counter measures as part of the

total system of operation. Such counter measures involves the following;

 Operation Security – a counter intelligence measure where all aspect of

awareness and training must be considered to prevent threat groups from

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learning the units plans methods of operations. It also refers to measures

taken in conducting operations or activities in secure and effective manner.

 Personal Security – it considers that all personnel are susceptible to terrorist

attack so the is a need for securing them. All security measures designed to

prevent unsuitable individuals of DOUGHTFUL LOYALTY from gaining access to

classified matters or security facilities.

Considerations of Personnel Threat Assessment

1. Rank and Risk – higher ranking personnel have great risk level. In high-risk areas,

secure high ranking officers because they may be selected as terrorist targets by

special knowledge they possess.

2. Threat Level (Potential Threats)

a. Primary targets are high-ranking military or police officers, government officials,

foreign ministries, other VIPs and persons possessing sensitive information.

b. Secondary targets – those selected as alternative terrorist targets to gain

publicity.

c. Randomly selected targets – Military or police personnel who are not off duty or

engage in private activities and become targets of opportunity.

Stages in preparation of Personnel Security Program

1. Planning – threat analysis and assessment of available personnel security resources.

2. Personal security education procedures are adopted.

3. Awareness – periodic briefing, public info drive, printed materials.

4. Education – education on terrorist tactics, sparrow opens and the like.

5. Physical Security – encompasses protection of info, material and people including

perimeter installation. A system of barrier placed between the potential intruder and

the material to be protected.

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3. PREPARATION - this pro-active phase involves organizing training and equipment

personnel of the organization. In general, military commanders and officers of the

PNP must organize, train and equip special reaction, security and negotiation

elements and provide their immediate activation when the need arises.

National Level Organization

NCCM – National Committee on Crisis Management - Serves as the umbrella

organization for crisis management. The primary concern is the formulation of crisis management

policies, integration of mil/pol to public efforts towards the prevention and control of crisis. It

is composed by:

1. PAFSECOM – Philippine Air Force Security Command

2. PNSWG – Philippine Navy Special Welfare Group

3. PASAG – Philippine Army Special Action Group

4. PNPSAG – Philippine National Police Special Action Group

RCAG – Regional Crisis Action Group

RCMOC – Regional Crisis Management Operation Center - the point of all communications from

the OSCP

OSCP – On-Scene Command Post

The OSCP shall establish with in the crisis incident site. It is a post or unit with in a

probable target to be headed by an on-scene commander (OSC) whose responsibility is to take

charge of every happening of a crisis incident scene.

Composition of the OSCP

TACTICAL UNIT – composed of regular military or police placed under the operational

command of the OSC.

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1. Reaction Element – Special action unit which are specially organized, equipped and

deployed in the region to hold special operation in cases of crisis incident.

2. Security Element – military or police personnel task to protect the area of perimeter

security to prevent occurrence of unnecessary incidents.

SUPPORT UNIT – It is a unit that provides the necessary administrative, operational and

logistic support of the OSC.

1. Intelligence Team – responsible for the collection and processing of all information

needed by the OSC.

2. Communication Team – responsible for insuring effective communication between OSC and

other units or sub-units.

3. Logistic Team – responsible for ensuring mess services, supplies (clothing, equipment,

transportation) and other logistic services.

4. Medical Team – responsible for all medical supplies and services in cases of crisis

incidents.

5. Fire Fighting Team – responsible for all services related to extinguishing fires

intentionally set by perpetrators or during the result of operations.

6. Administrative Personnel – personnel assigned to OSC to keep written records of events,

in coming or outgoing communications.

7. Legal/Investigation Team – services of investigation, preservation of evidence, documents

and legal advice to the OSC.

NEGOTIATION UNIT – It is headed by a chief negotiator and composed of two or more

members. Their primary concern is to serve first life, prevent destruction and pave the way for a

peaceful resolution of crisis situations.

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THE REACTIVE PHASE

When a crisis occur despite the pro-active effort, the organization concerned must be

prepare to perform the crisis management in accordance with their plan.

PERFORMANCE - It is the action stage, the implementation of the crisis management

contingency plan.

1. The Initial Action – the stage taken by the Initial Action Unit, which is composed of

police and military personnel immediately organized into team to initially respond to take

incident and begin the containment effort. They are responsible for:

 maintain control of the situation

 report the matter to the RCAG through channels

 secure the scene by establishing perimeter security

 evacuate by standers if possible

 prevent escape of perpetrator

 take maximum control

2. The Action Stage - The action stage starts as soon as the tactical, support unit and the

negotiation unit arrived and are deployed. The OSC discusses the incident with his

commander and staff and decides on the plans and actions to be taken.

 Negotiation – chief negotiator undertakes negotiation as soon as he has been

properly briefed and received appropriate instruction from the OSC. He shall keep

the OSCP informed of the progress of negotiations and shall take instructions only

from the OSC. No further negotiation shall be under take when the tactical unit

commander initiates tactical operations.

 Tactical Action – the tactical commander makes a complete estimate of the crisis

situation and plans his courses of action upon arrival at the scene while negotiation
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is in progress. He shall maintain and continuous contact with the OSCP. He shall

take over authority on reaction element through out the tactical operations. He

shall take instructions only from the OSC and coordinate all support requirements

with the OSCP.

3. The Post Action Stage - This stage begin as soon as the perpetrator surrendered,

captured or neutralized. OSC shall ensure that the following are accomplished:

 Protection of the incident scene

 Investigation of the incident preservation of evidence

 Documentation

 SS – witnesses, hostage, perpetrators and other key participants of the incident.

 Recovered, documented, preserve evidences

 Pictorials, written reports

 Filing and prosecution of cases

 Damage Compensation and rehabilitation

He also initiates recommendation for the compensation and provide assistance to

civilian killed and injured during tactical operations. He initiates recommendation for the

rehabilitation, construction of damage or essential infrastructures.

Training and re-training of unit personnel special units and negotiators shall continue with

their training to improve their proficiency and enhance their readiness.

CONCERNS OF CRISIS MANAGEMENT

TERRORISM

 a threat or actual use of force or violence for political or other purpose, to foster

fear, insecurity, distrust, and unrest among a specific group or the general population.

 “Violence for effect… not primarily, and sometimes not all for the physical effect on

the actual target, but rather for its dramatic impact on an audience.”
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 “The calculated use of violence or the threat of violence t attain goals, often political

or ideological in nature”.

 “ Is violent criminal behavior designed to generate fear in the community, or a

substantial segment of it, for political purposes.

Classification of Terrorist
1. National Terrorist - A terrorist who operates and aspires to political power primarily

within a single nation.

2. Transnational Terrorist - This is a terrorist who operates across national boarders,

whose actions and political aspirations may affect individual of more than one nationality.

3. International Terrorists - A terrorists who is controlled by, and whose actions represent

the national interest of a sovereign state.

MOTIVATION AND GROUP CLASSIFICATION

What causes a rational thinking human being to terrorize society? Assuming that the

terrorists think rationally ( and most of them possess a high degree of rationality ), we must look

to the terrorists motives if we are to understand them, to think like them, and to ultimately

them.

1. Minority Nationalistic Groups - groups fighting the majority of the community where the

support base will depend one ethnic, religion, linguistic minorities at odd with the majority

community.

2. Marxist Revolutionary Groups – here, the terrorists’ movement is characterized by its

possession of a coherent Marxist ideology and of a long-term strategy for bringing about

the socialistic revolution.

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3. Anarchist Group - True Anarchist are difficult to find since true anarchy brings

lawlessness and disorder, which is not a natural state in which the human race exists.

4. Pathological Groups – problematic individuals who are grouped together for some

terrorist activities for emotional satisfaction.

TERRORISTS PROFILE (based on commonalties of international terrorists)

1. under 30 years of age

2. action oriented - some are college educated

3. from affluent/middle-class

4. often trained in medical, legal, engineering, teaching professions

5. terrorism rarely full-time occupation

6. inward assurance of strength

7. paradoxically, basically lonely

8. believes he/she to be morally superior and in own mind is right

9. indifferent to suffering of his immediate victims

10. looks to colleagues for acceptance

11. wants respect from victims

12. willing to sacrifice self

13. seek publicity

14. believes violence is morally justified to support cause

Nature of Political Terrorist

1. It is a part of revolutionary strategy.

2. Manifest in acts on socially unacceptable means.

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3. Symbolic target selection.

4. Creates psychological effects on population to change behavior attitude.

5. It forces the government to take drastic measures.

6. Combines political and criminal terroristic tactics.

Aims of Political Terrorist

1. Influence, discredit and destroy present system.

2. To break down social structures.

3. Erode trust in established government.

4. Foster insecurity and fears.

5. Shows that the government is incapable of protecting the people.

6. Forces the government to overreact to use excessive measures or force.

7. Destroy property.

8. Disrupt law and order

9. Propaganda

10. Create a ripe climate to revolution.

Common Characteristics of Terrorist

1. Promote fear

2. Main objective is publicity

3. Highly mobile

4. Fatalist – they can create destruction affecting the whole nation.

5. Undercover operations

6. Small groups mean security efficiency

Immediate Goals of Terrorist

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1. Local, national, worldwide recognition for a cause.

2. They cause government reactions.

3. Harass, weaken, embarrass government and government forces.

4. Demonstrate power and threat credibility.

5. Obtain money and equipment.

6. Destruction of communication.

7. Prevent and delay executive decisions.

8. Cause strikes or prevent elections, free or prevent elections.

9. Satisfy vengeance.

Long Range Goals of Terrorist

1. Cause drastic changes in the government.

2. Turn the system favorable to their side.

3. Gain political recognition as a legal body representing an ethnic or national group.

Cooperation among Terrorist

1. Sharing resources (logistic support)

2. Sharing expertise.

3. Sharing safe havens.

4. Participating in joint operations.

Organization of Terrorist Groups

The way terrorist group organized is determined by it’s the need of security and the

number of people in the group.

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1. Larger Groups – less secured

2. Small Groups – high degree of security but limited to operational capabilities.

As to group size, the large group can only succeed over a longer term in a week political

environment.

As to group security, government forces attempt to destroy terrorist group or keep

them in defensive position to discourage them from mobilizing new to be extremely covert.

Terrorist Operation

1. Covert and well executed.

2. Carried out by specially well-trained and organized clandestine elements.

3. Weapons – basic arms and explosives but continue to seek advance weaponry.

4. Training – they are trained on subversion, weaponry, negotiation practices and espionage.

5. Members of clandestine elements are of above average intelligence.

Methods of Operations

1. They operate in small bands

2. They carry light automatic weapons, grenades, basic explosives, ammunitions and

communication equipment.

3. They mask their activities with the local populace.

4. Team includes assaults and security elements.

5. Leaders serve as negotiators.

6. They watch out for counter intelligence measures of the government forces.

7. In hostage taking, hostages are usually separated in safe houses to prevent

communications and escape, planning, and intelligence gathering.

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Sequence of Terrorist Action

1. Pre-incident phase – reconnaissance mission, Rehearsal

 Often reconnaissance team, planners, perpetrators do not meet.

 Communication are through intermediaries or by message drop.

2. Initiative Phase – moves to their target covertly.

 they use false names, ID, passports

 they use separate routes

 weapons and other items are separately to pre-arrange locations

3. Negotiation/Climax Phases

 they use negotiation to gain publicity.

 Negotiation- often requires inter-government negotiations at the highest level.

 When government failed to give demands, they initiate more terror

4. Post incident Phase

 they learn from their failures and success

 terrorist re-groups, criticize and give critique about the operation.

TERRORIST TACTICS

BOMBING

Delivery to target is done through:

1. Vehicle Bomb-booby traps with attached devices

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2. Laid Charges-bomb plates

3. Projected bombs-launched from riffles by a mortal device

4. Postal/mail bombs

Activation means:

1. Command activation by leads, pull wire or mechanism

2. Action by the subject/top pressure device, light sense electric switch

3. Time delay clock/burning chemical delay

ARSON - This is use to destroy or to disrupt public utilities, political HQs and industrial

facilities.

HIJACKING - Hijacking and skyjacking are commonly used by terrorists. The hijack

supply, ammunitions, fuel cargoes, and vehicles to provide them to gain entry to a close military

area, skyjacking of commercial aircraft to gain publicity or to ask demands.

ASSASSINATION - The oldest but the commonly used terrorist tactic where targets

are often police or military officials or political features and they always claim responsibility of

assassination.

AMBUSH - This is a well-planned, well thought-out, properly rehearsed and precisely

executed operation. The terrorist has time on his side and will spend considerable time preparing

for an operation. Terrorist have an advantage in that they can choose the time and place of

operation.
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KIDNAPPING - Kidnapping for ransoms is the most common form of this tactic. The

victim is normally confined in a secret hideout and kidnappers make material demands.

HOSTAGE TAKING - The hostage-taker confronts the authorities and openly holds the

victims for ransom. His demands are more than just material in nature. Political concessions are

the frequency demanded in exchange for the hostage lives.

ROBBERIES/EXTORTIONS - Terrorist operations are expensive. To help finance their

activities, terrorists rob banks and armored vehicles carrying large sums of cash. Bank robberies

are also used as graduation exercises for terrorist training programs and viewed as a tactical

operation. The conduct reconnaissance, plan escape routes and operates in the high degree of

efficiency and the progressive taxation scheme of the CPAA/NPA is a form of extortion through

coercion or use of force against the victim or his property.

TERRORIST TARGETS

1. MILITARY/POLICE

 command and control facilities

 logistic/storage facilities

 computer facilities

 explosives, sensitive weapons, arms and ammunition depots

2. ENGINEERING AND ENERGY SYSTEM

 hydroelectric plants

 offshore oil rigs

 nuclear facility sites

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 gas pipelines

 dams and electric power lines

3. COMMUNICATION AND SUPPLIES

1. communication lines and facilities

2. chemical storage sites

3. dock facilities

4. equipment warehouse

5. computer facilities

4. TRANSPORTATION

 rail lines and cars

 bus depots

 airports and aircraft

 trucking and facilities

 shipyards and ships

 mainland routes and bridge

5. HUMAN

 members of the diplomatic crops

 government officials

 corporate executives
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 police and military forces

 dependents/close relatives of the above

6. VULNERABILITIES - Vulnerabilities are the weaknesses the installation security and

high risk targets with in such installation. These vulnerabilities are normally identified

through security surveys and inspections conducted periodically or on the spot intelligence

and security units staffs.

The analysis of the threat to certain installation is based on information with both static

and dynamic dimensions.

 STATIC DIMENSIONS – terrain, nationality of population, major industry in the area,

location of installation, mission of the installation

 DYNAMIC DIMENSIONS - assignment of personnel, security measures used

relations with civilian security, demonstrations within post location

 DYNAMIC DIMENTIONS THAT ARE HARDLY CONTROLLABLE – weather, activities

of hostile groups, economic conditions, local law enforcement, off post demonstrations

The vulnerability of installations can be determined to some extent through the

consideration of the following factors:

 Installation characteristics and its attractiveness as a target for the terrorist acts.

 status of training personnel

 availability of communications

 non-military law enforcement resources

 time and distance from military installation able to lend assistance

 geographic region

 proximity to foreign borders

 access to installation
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