Special Terms on Appropriate Dispute Resolution

Special Terms on Appropriate Dispute Resolution

Adjudication – A form of dispute resolution in which the parties to the dispute present arguments and evidence to a neutral third party who has the power to deliver a binding decision. The term includes arbitration and litigation.

Advocate – One who actively supports a particular party in a case, usually an attorney or a representative.

Alternative (or Appropriate) Dispute Resolution (ADR) – ADR is a widely used term referring to the entire range of dispute resolution options outside the traditional administrative, judicial or legislative decision-making process.

Arbitration – A dispute resolution process in which the parties, or their attorneys, present evidence and make arguments to a single decision maker called an arbitrator, or a panel of three arbitrators, sometimes referred to as a tribunal, who makes a decision in the case. The decision is binding unless the parties agree it will not be binding.

Arbitrator – The neutral decision maker in arbitration.

Binding – Mandatory; a binding decision in a case is a decision the disputants must accept.

Caucus – A private session between the mediator and any one party in which the mediator explores the issues involved in the case and the options available to the parties to resolve the matter. If the mediator meets separately with one party, the mediator will almost always then meet separately with the other parties to the mediation.

Compromise – The settlement of a dispute by mutual concession. A compromise often results in both parties giving something up and meeting midway.

Conciliation – A process that facilitates dispute resolution, in which a neutral third party, called a conciliator, acts like a go-between, communicating each side’s position to the other, relaying settlement options, and sometimes offering non-binding advice in an effort to bring the sides closer to settlement. In conciliation, the parties do not meet together.

Conciliator – A neutral that serves in conciliation.

Conflict – Conflict is usually based upon a difference over goals, objectives, or expectations between individuals or groups. Conflict also occurs when two or more people, or groups, compete over limited resources and/or perceived, or actual, incompatible goals.

Conflict Resolution – A process of resolving a dispute or disagreement

Consensus – A mutually acceptable agreement that takes into consideration the interests of all concerned parties. An agreement reached through consensus may not satisfy each participant’s interests equally or receive a similar level of support from all participants.

Court-annexed – Any ADR process which parties may be required, or advised, to undertake by the court.

Deposition – A process carried out prior to a trial or dispute resolution hearing, through which disputants in a case or their attorneys jointly question a witness and record the witness testimony under oath. That statement may be used later as evidence during the trial or dispute resolution hearing.

Discovery – A process, carried out prior to a trial or dispute resolution hearing, in which disputants in a case exchange documents, or gather information that is pertinent to the case.

Early Neutral Evaluation (ENE) – A form of dispute resolution in which the legal and factual positions of the parties are presented to a neutral third party who is knowledgeable in the subject matter. This third party evaluates the position of each party and advises each side of the weaknesses and strengths in its position, and may offer an opinion regarding the outcome of a trial.

Facilitation – A collaborative process used to help parties discuss issues, identify and achieve goals and complete tasks in a mutually satisfactory manner. This process uses an impartial third party, the facilitator, who focuses on the processes and procedures of dispute resolution and decision-making. The facilitator is impartial to the issues being discussed and has no decision-making authority.

Facilitator – A neutral who conducts a facilitation.

Fact-finder – A neutral who carries out the process of fact-finding to help encourage the resolution of a dispute.

Federal Arbitration Act (FAA) – A law enacted by the United States Congress in 1925 to affirm the enforceability of arbitration contract clauses and arbitration awards, and to create a basic framework for business arbitration agreements.

Interest – The needs, desires, hopes and fears of the parties that lead them to take a particular position. The parties’ interests serve as the motive for their positions. They are the reasons, or underlying needs and concerns, that motivate people to ask for certain outcomes.

Issue – The matter being disputed. A conflict may have one or more issues.

Litigation – The process through which a case is tried and resolved in a court of law, an administrative agency, or another decision making tribunal.

Med-Arb – A dispute resolution process where 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 by the same, or a different, person.

Med-arbitrator – The neutral who carries out the dispute resolution process called Med-Arb, and fulfills the dual role of both mediator and arbitrator

Mediation – Is a voluntary, non-binding, confidential process that assists parties in talking about their disagreements with the help of a neutral third party.

Mediator – The neutral who carries out the dispute resolution process called mediation.

Minitrial – A private, consensual dispute resolution process in which attorneys present an abbreviated version of their client’s case to a panel that consists of a person with decision making authority from each of the disputing parties. After the presentations, the parties’ representatives try to resolve the dispute through negotiation. Sometimes the parties will hire a third party neutral to conduct the process, as well as give advice and share, if asked, his or her impressions of the strengths and weaknesses of each side. This process is normally used only in large disputes.

Negotiated Rulemaking (Reg-Neg) – A facilitated process by which government agencies draft a regulation in cooperation with a group representing all interested parties. A successful reg-neg leads to a proposed rule that all parties can live with and support. The process is an effort to prevent challenges to the regulation once it is officially proposed

Neutral – An individual who has no conflict of interest or bias toward any party to the dispute.

Neutral Fact-finding – A process in which the parties to a dispute, and/or their representatives, ask an impartial third person to decide disputed factual issues between them. Unless the parties otherwise agree in writing, the findings are not binding

Non-binding – Not mandatory; a non-binding dispute resolution procedure is one from which any disputant is free to walk away at any time; a non-binding decision in a case is one that any party may reject, opting instead to negotiate another settlement or to proceed to another type of dispute resolution procedure.

Ombuds – A neutral empowered to receive and investigate complaints about any institution, or business, or to investigate problems between individuals within the institution or business. Sometimes the Ombuds may produce a written report of his/her findings; sometimes the Ombuds is given the authority to facilitate solutions to problems or to make suggestions on how problems should be solved.

Ombudsman (Ombudsperson) – see Ombuds

Partnering – A technique designed to prevent business disputes from occurring by establishing working relationships between business partners that are based on open communication, joint problem solving, teamwork, and shared risks and rewards. By entering into, and agreeing to uphold, a partnering relationship, business associates also agree to employ innovative, business-oriented methods to resolve disputes.

Position – A disputant’s ideal, unilateral solution to a dispute. Positions describe possible outcomes or solutions.

Private Judging – A process agreed to by the parties whereby the dispute is presented to a neutral third party, typically an experience attorney or retired judge, hired by the parties, who renders a binding decision. The process has the form of a private trial, governed by the rules of the private court or rules specifically drafted by the parties.

Regulatory Negotiation – (see Negotiated Rulemaking).

Settlement – The agreement reached at the conclusion of any dispute resolution procedure.

Settlement Conference – A discussion among the disputing parties, their counsel, and a neutral attorney or court official, to explore options for settling a dispute before it proceeds to litigation. This process can be voluntary or ordered by a judge.

Summary Jury Trial (SJT) – A non-binding advisory trial, during which litigants argue abbreviated versions of their cases before a jury that has been selected by the court. The jury renders an advisory verdict and discusses the decision with the parties and their representatives, telling them why they decided the way they did. The parties may accept the decision as the final verdict in their case, use the decision as a basis for negotiating their own resolution of the case, or go to a full trial before another jury

Trial – A dispute resolution process in which a judge or a jury renders a decision after hearing the evidence and oral arguments in the case. A trial is often conducted as a public hearing and is subject to formal rules.

Uniform Arbitration Act (UAA) – an act passed by the United States Congress, with help from the American Bar Association and the National Conference of Commissioners on Uniform State Laws, that upholds the validity of arbitration agreements, sets of procedures by which parties may compel or stay arbitration, and enumerates a framework of rules and procedures to guide arbitration processes.

Source Maryland Legal Assistance Network

Date last reviewed 1/2001