"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.
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 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.
"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".
"Mediation on all, rather than selected, issues, particulary in family disputes".
"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.
"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.
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.
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".
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.
"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".
"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.
See Executive Hearing
MODERATED SETTLEMENT CONFERENCE
"A settlement conference promoted and supervised by the court."
"A court of law in which facilities for arbitration and/or ADR are also provided."
"The process of working out an agreement by direct communication."
Independent third party who acts as mediator, conciliator or chairman in various ADR procedures."
"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.
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)."
The Working Party
Henry Brown - Family Mediators Association
H H Campbell QC - Faculty of Advocates, Scotland
Karen Gough - Chartered Institute of Arbitrators
Jane C Hern - The Law Society
Edward J Lavery - The Law Society of Northern Ireland
Richard McLaughlin - Bar Council, Northern Ireland
David Miles - Centre for Dispute Resolution
Colin M Milne - The Law Society of Scotland
Philip Naughton QC - Bar Council, England and Wales
Derek Sharp - Society of Construction Arbitrators
Bertie Vigrass - London Court of International Arbitration
David B Walter - The Scottish Council for Arbitration
Anthony D Woolf (Working Party Chairman)