"The Language of ADR - an International Glossary" was conceived and
published as a part of The Academy's desire to facilitate good practices, efficient
communication and co-operation between all of those involved in ADR.
The present Glossary resulted from the co-operation of 600 individuals and
institutions from 43 countries. Work is now in hand for the second and we hope, expanded
edition. We also intend to include a 'directory of dispute resolution clauses'
which are in use around the world.
The repeated pleas of practitioners and users around the world have convinced us that a
positive lead is required in the continuing academic debate to determine whether mediation
is really conciliation or vice verse.
Whilst recognising that any change in terminology can produce "local
difficulties" the use of this glossary is not mandatory. It is our hope that by the
use of a universal ADR glossary one area of dispute will be removed. The fact that some
may not follow every definition will not remove its need.
Our thanks go to all who have provided information and suggestions and to the
hardworking multi-disciplinary working party for their Report. The majority of definitions
used are theirs although there are some variations and additions.
- ADR
-
ADR stands for "Alternative Dispute Resolution" defined as "any method of
resolving an issue susceptible to normal legal process by agreement rather than by an
imposed binding decision" NB; In general usage "decision" means an
authoritative decision imposed on the parties other than by their consent by a judge or
arbitrator.
- ADJUDICATION
-
"Exercise of a power delegated by contract to a third party to resolve disputes on
an interim or final basis as they arise without recourse to formal arbitration or
litigation".
- CAUCUS (also known as PRIVATE MEETING)
-
"A private session with any one party in which the mediator explores ways of
resolving the dispute".
- COMPREHENSIVE MEDIATION
-
"Mediation on all, rather than selected, issues, particulary in family
disputes".
- CONCILIATION
-
"A without prejudice non-binding dispute resolution process in which an independent
third party ("neutral") assists the partes to settle their difference but may,
if necessary, deliver his opinion as to the merits of the dispute".
NOTE: A
conciliator (neutral) may be required to make a "Recommendation" as to how the
dispute should be settled if agreement cannot be reached by the partes during the process.
In some contracts the parties agree that a Conciliator's Recommendation is binding
unless challenged within a stated period. 'Conciliation' and 'Mediation' are often used
interchangeably and indiscriminately.
- COURT-ANNEXED ADR
-
"Any ADR process which parties may be required or advised to undertake by the
court, or an ADR facility which is offered by the court (e.g. in a "multi-door"
courthouse)".
- COURT ANNEXED ARBITRATION
-
A form of court annexed ADR in which an "arbitrator" gives a preliminary
decision which, in some circumstances, may thereafter become binding upon the
parties" (esp USA)".
- DISPUTE REVIEW PANEL/BOARD
-
"A panel set up under the terms of a contract to adjudicate, mediae, or settle
claims, disputes or controversies referred them, either on an interim or a final and
binding basis."
- EARLY EXPERT EVALUATION
-
The use of an independent Expert to investigate and give his Expert opinion on any
matter referred to him by the parties. Normally this will be used by the parties to assist
them in reaching a settle or narrowing the issue.
- EARLY NEUTRAL EVALUATION
-
The use of a neutral to give his opinion on a matter often of the potential outcome of
the dispute.
- EXECUTIVE HEARING (also known as Mini-Trial or executive Tribunal)
-
A without prejudice formalised settlement procedure in which advocates present their
clients best case and reasons for settlement within strict time limits to a panel composed
of one executive decision-maker representing each party. It is followed immediately by
direct negotiation. The parties are often assisted by a neutral retained, he may be
requested to preside and maintain the rules and an agreed timetable, to assist with
negotiations and, if so agreed, to give an opinion o the likely outcome of litigation.
- EXPERT DETERMINATION
-
The use of an independent Expert to investigate the referred matters and to give his
opinion which becomes binding on the parties. Not strictly an ADR process.
- EXPERTS MEETING
-
These can be either arty arranged or Court (or Tribunal) ordered, The object is to
enable the Experts to determine those matters upon which they agree and those upon which
they disagree. Not strictly an ADR process.
- FACT FINDING EXPERT
-
"Independent expert appointed by agreement of the partes to investigate and report
to them on all or any specified issues of fact and/or opinion in dispute between them,
ether to assist them in reaching a settlement by and ADR process or, as may be agreed, to
determine those issued for the purposes of any on-going litigation or arbitration".
- GRIEVANCE PROCEDURE
-
A prescribed procedure agreed by a public or private body which it and/or its members
are normally obliged to follow for the consideration and redress complaints or grievance
brought against it or them by employees, client or members of the public.
- MED-ARB (MEDIATION-ARBITRATION)
-
"A dispute resolution process whereby a neutral first attempts to mediate the
dispute but, if mediation is unsuccessful in whole or in part the remainder of the dispute
is arbitrated upon by the same or a different person".
- MEDIATION
-
"A without prejudice non-binding dispute resolution process in which an independent
third party ("neutral") assists the parties to settle their difference but does
not advise them of his own opinion as to the issues and merits of the disputes".
Note;
"Conciliation" and "Mediation" are often used interchangeably and
indiscriminately.
- MINI-TRIAL
-
See Executive Hearing
- MODERATED SETTLEMENT CONFERENCE
-
"A settlement conference promoted and supervised by the court."
(many
variations).
- MULTI-DOOR COURTHOUSE
-
"A court of law in which facilities for arbitration and/or ADR are also
provided."
- NEGOTIATION
-
"The process of working out an agreement by direct communication."
- NEUTRAL
-
Independent third party who acts as mediator, conciliator or chairman in various ADR
procedures."
- OMBUDSMAN
-
"Usually an independent person whose role is to deal with complaints by the public
against administrative (and, in some countries, corporate) injustice and
maladministration, with the power to investigate, criticise and publish reports on his
findings. He will normally have some power to recommended the payment of
compensation."
- PRE HEARING REVIEW
-
In arbitration - as for pre trial review.
- PRE TRIAL REVIEW
-
In litigation the preliminary consideration of a case with a view to giving directions
as to its speedy future handling.
Note: This should not be confused with
Mediation although it should be noted that some judges specifically draw attention to the
benefits of mediation but leave it to the parties to make their own arrangements if they
wish to proceed with that route.
- PRELIMINARY MEETING
-
In arbitration - as for Pre Trial review.
- SETTLEMENT CONFERENCE (in some territories)
-
A Pre-Trial review by a judge who acts as a mediator, in the event the Mediation is not
successful the matter is tried by a different judge.
Note: Although
"suggestions" may be made by a trial judge that the parties should settle this
should not be confused with Mediation.
- STRUCTURES SETTLEMENT CONFERENCE
-
In some territories is an Executive Hearing but in others it is a specialist process in
personal injury litigation.
- TERMS DESCRIBING PARTICIPANT IN ADR
-
"Parties should be referred to be their proper names or by their general
description (e.g. 'Employer', 'Insurer', etc)."
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