Alternative Dispute Resolution

Group 3 M1
JRU Law School

29 November 2013
C o n c i l i a t i o n
Outline
Definition of Conciliation
History of Conciliation
Difference between Conciliation, Mediation and
Arbitration
Advantages and Disadvantages of Conciliation
Conciliation Proceedings: General Steps
Legal Basis of Conciliation in the Philippines
The National Conciliation and Mediation Board (NCMB)
Functions of the NCMB
Who Can Avail the Services of NCMB

Conciliation, defined

CONCILIATION is an alternative dispute resolution
(ADR) process whereby the parties to a dispute use a
conciliator, who meets with the parties separately in
an attempt to resolve their differences.


Conciliation, defined
MODES OF INTERVENTION:
lowering tensions;
improving communications;
interpreting issues;
providing technical assistance;
exploring potential solutions; and
bringing about a negotiated settlement

Conciliation process, in and of itself, has no legal standing, and the conciliator
usually has no authority to seek evidence or call witnesses, usually writes no
decision, and makes no award.

The main goal is to conciliate, most of the time by seeking concessions. In
conciliation the parties seldom, if ever, actually face each other across the table in
the presence of the conciliator.

History of Conciliation in the Philippines
1930 Social Justice Program under President Manuel L. Quezon

1936 Constitution, Article XIV Section 6

Republic Act 875 Court of Industrial Relations

P.D. No. 21 1972 Creating National Labor Relations Commission

1974 Philippine Academy of Voluntary Professional Arbitrators was
organized

1974 Promulgation of P.D. 442 known as the labor Code of the Philippines

Republic Act 6715 Art. 211[a] and Art. 211[e]
Conciliation, Mediation & Arbitration
Conciliation & Arbitration
Conciliation differs
from arbitration in that the
conciliation process, in and
of itself, has no legal
standing, and the
conciliator usually has no
authority to seek evidence
or call witnesses, usually
writes no decision, and
makes no award.
Conciliation & Mediation
Conciliation differs
from mediation in that the
main goal is to conciliate,
most of the time by seeking
concessions. In mediation,
the mediator tries to guide
the discussion in a way that
optimizes parties needs,
takes feelings into account
and reframes
representations.

Advantages of Conciliation

Informality: The process is considered the
most relaxed and least adhering to the
typical adversarial method of dispute
resolution.

Non face to face aspect: Enables parties to
engage in a dispute resolution process
which does not require the parties to
come face to face.





Cost: As with most alternative dispute resolution processes, conciliation is
generally a cheaper option than litigation.

Privacy/Confidentiality: At the beginning of a conciliation, parties generally
enter into an agreement as with the majority of alternative dispute resolution
processes, that ensures that the parties negotiations are conducted as
confidential and private.



Time: Conciliation is more efficient than going through a court process and
often can be resolved within a week from the beginning of the process.

Agreement: As with the mediation process, conciliation requires the
parties to come to a mutual agreement for the process to be successful.

No Binding Agreement: If the parties are unhappy with the way in which
the conciliation is being carried out they can leave the process with no
obligations other than to pay the costs already incurred from the process.

Conciliator Involvement: The involvement of the mediator can be positive
as a conciliator, whilst acting as an impartial third party can provide clarity
on issues which are in dispute between the parties.



Advantages of Conciliation

No Binding Decision: If no agreement can be made between the
parties, each will be left in the same position as they started.




Disadvantages of Conciliation


Conciliator Involvement: Although the conciliator is meant to be an
impartial third party, the ability for them to involve themselves in
the proceedings through their active involvement can question the
unbiased nature of the conciliator.



Conciliation Proceedings: General Steps

The parties will create an agreement by which they agree (to
attempt) to solve their dispute by means of conciliation. Such an
agreement can be decided upon before or after the dispute has
arisen.
The parties must choose their conciliator. There are several
institutions able to assist the parties with this selection.
It is up to the conciliator to time, prepare, structure, and
conduct the conciliation proceedings. In doing so, different
conciliators will take varying approaches.
Like a mediator, the conciliator will try to guide the parties to an
amicable settlement.

Legal Basis of Conciliation in the Philippines

Article XIII, Section 3, 1987 Constitution of the Philippines:
The State shall promote xxx the preferential use of
voluntary modes of setting disputes including
conciliation and shall ensure mutual compliance by the
parties thereof in order to foster industrial peace.

Article 211 (a), The Labor Code of the Philippines:
To promote and emphasize the primacy of free
collective bargaining and negotiations, including
voluntary arbitration, mediation and conciliation, as
modes of settling labor or industrial disputes


The National Conciliation and Mediation Board
(NCMB)


The NCMB, created under EO No. 126,
reorganizing the DOLE, shall:

formulate policies, develop plans and programs and
set standards and procedures relative to the
promotion of conciliation and mediation of labor
disputes through the preventive mediation,
conciliation and voluntary arbitration;
facilitation of labor-management cooperation through
joint mechanisms for information sharing, effective
communication and consultation and group-problem
solving.

Functions of the NCMB

Formulate policies, programs, standards, procedures, manuals
of operations and guidelines pertaining to effective mediation
and conciliation of all labor dispute;
Perform preventive mediation and conciliation functions;

Coordinate and maintain linkages with other sectors of
institutions, and other government authorities concerned
with matters relative to the prevention and settlement of
labor disputes.

Formulates policies, plans, programs, standards, procedures,
manuals of operations and guidelines pertaining to the
promotion of cooperative and non-adversarial schemes,
grievance handling, voluntary arbitration and other voluntary
modes of dispute settlement.

Administer the voluntary arbitration program;
maintain/update a list of voluntary arbitrators, compile
arbitration awards and decisions;



Functions of the NCMB

Provide counseling and preventive mediation
assistance particularly in the administration of
collective agreements;
Monitor and exercise technical supervision
over the Board's programs being implemented
in the regional offices; and
Perform such other functions as may be
provided by law or assigned by the Secretary.



Functions of the NCMB


Who Can Avail the Services of NCMB

Any party to a labor dispute,
either the union or
management, may seek the
assistance of NCMB or any of
its Regional Branches by means
of formal request for
conciliation and preventive
mediation.

Depending on the nature of the problem, a request may be
filed in the form of consultation, notice of preventive
mediation or notice of strike/lockout.

References:

Institute of Developing Economies (IDE), Asian Law Series No. 18

Rechtsstandort Hamburg e.V., http://www.dispute-resolution-hamburg.com/

Federal Mediation and Conciliation Service (FMCS), http://www.fmcs.gov/internet/

National Conciliation and Mediation Board, http://ncmb.ph