The ABCs of ADR

Comprehensive Glossary of Alternative Dispute Resolution (ADR) Terminology

Click on any of the letters below to learn more… We’re continually updating this glossary and welcome your additions / revisions. 

A

Adjudicative Process

A neutral third party is brought in to hear and consider facts and/or arguments presented by the parties and to render a reasoned, binding [show_more more=More… less=Less…]decision or solution based upon an agreed standard of legality or fairness. The neutral’s role in the adjudicative process is to deliver a resolution for the parties, not to help them reach an agreed-upon solution to their dispute.[/show_more]

Alternative Dispute Resolution (ADR)

A full range of problem-solving dispute resolution processes – between direct [show_more more=More… less=Less…]negotiation to litigation – wherein a neutral professional assists the parties in reaching an amicable solution, a binding agreement or other resolve to a dispute.[/show_more]

Arbitration

A formal adversarial hearing before a neutral, called the arbitrator, with a relaxed evidentiary standard. The arbitrator is usually a subject matter expert.

Arbitrator

An individual conducting Arbitration Hearings.

Arbitration Agreement

Any written agreement between the parties to resolve a dispute, claim or controversy through binding Arbitration. 

Arbitration Award

A binding award issued by an Arbitrator establishing the final rights and obligations of the parties. A judgment may be entered for[show_more more=More… less=Less…] enforcement in a public court pursuant to the rules of the relevant jurisdiction for enforcement of arbitral awards. [/show_more]

Arbitration Notice

A written notice which the Claimant files and serves upon the Respondent to initiate the claim and request Arbitration. Also referred to as a Demand For Arbitration.

Arbitration Hearing

The scheduled meeting of the parties and Arbitrator(s) for the purpose of taking evidence and testimony to reach and resolve[show_more more=More… less=Less…] the dispute leading to a binding Arbitration Award. [/show_more]

B

BATNA

BATNA is an acronym popularized by Roger Fisher and William Ury which stands for  ‘Best Alternative to a Negotiated Agreement’. [show_more more=More… less=Less…]BATNA answers the question: ‘What would you do if you weren’t able to agree a deal with your negotiation counter-party?’ Your BATNA is the alternative action you’ll take should your proposed agreement fail to materialize. Most business people simply use the phrase: ‘Best Alternative’.

Your BATNA options typically include:

  • finding another counter-party to do business with,
  • changing the specifications,  requirements or formulation,
  • not going ahead or at least pausing,
  • creating the product, asset or service internally within your business.

Of course if you discover a more attractive alternative, you’ll start negotiating with your more attractive counterpart, and your first negotiation counter-party will become your BATNA (i.e. switching BATNA’s). Since your BATNA is your single greatest source of negotiation power, you need to at least figure out each party’s BATNA.

While almost all our clients understand what BATNA means, relatively few arrive on our sales negotiation courses with an understanding of how to leverage their BATNA (buyers tend to do better). Here’s some of the advice we share with our clients:

  • Start researching early, as it usually takes more time than most expect to develop their BATNA to the stage where it becomes actionable.
  • Don’t focus exclusively on your BATNA. Most don’t give enough thought or research into uncovering their counter-party’s BATNA.
  • Focus on facts not posturing and biases. Most overestimate their BATNA and often grossly over or underestimate the other side’s BATNA.
  • Work on affecting your counter-party’s perception of your BATNA. Best results are usually achieved in business negotiations by being indirect rather than direct about your BATNA, the effect is similar. Of course you need not lie about your BATNA.
  • When developing your BATNA, involve your stakeholders or colleagues to move faster while also gaining more options and consensus.

[/show_more]

Bracketed Arbitration (or “high-low” arbitration)

An arbitration proceeding whereby the parties agree to “bracket,” or limit the possible range of [show_more more=More… less=Less…]damage awards. The plaintiff agrees to accept not less and the defendant agrees to pay not more than agreed upon sums. If the arbitrator’s demand award falls within the agreed upon sums, the arbitrator’s decision is binding. If the arbitrator’s decision is higher than the ceiling or lower than the floor agreed to by the parties, damages are limited or increased respectively in accordance with the agreed upon bracket.[/show_more]

C

Case Manager

An ADR employee assigned to coordinate and facilitate mediations and arbitrations to their conclusion, including[show_more more=More… less=Less…] Mediator/Arbitrator selection, scheduling, billing, communications and client relations.[/show_more]

Caucus

Caucuses are meetings that mediators hold separately with each side of a dispute. They can be called by the mediator or by one of the [show_more more=More… less=Less…]parties to work out problems that occur during the mediation process.[/show_more]

Claim

Any claim seeking a remedy or relief submitted by one party against other parties including an initial claim, counter or cross-claim.

Claimants

The filing party in a dispute, also known as the Plaintiffs .

Concilation

A private, voluntary process in which the parties appoint a neutral third party professional to investigate the dispute and [show_more more=More… less=Less…] provide a non-binding report of recommendations for resolve.[/show_more]

Conflict

A clash between two or more people guided by a set of tacit rules, over their perceptions of scarce resources, incompatible content, [show_more more=More… less=Less…]relational, identity or process goals, unfulfilled needs, imbalance of power and/or loss of face.[/show_more]

Continuance

Continuance is a postponement of today’s trial to a specific date in the future. Either party has the option of seeking a Continuance. 

Consumer

An individual who purchases, seeks or acquires good or services for personal, family or household use.

Counterclaims

A claim made in opposition to an existing Mediation or Arbitration.

D

Demand For Arbitration

A written notice which the Claimant files and serves upon the Respondent to initiate the claim and request Arbitration.

Deposition

The out-of-court testimony of a witness (under oath) that is reduced to writing for later use in court or for discovery purposes.

Diplomacy

The art and practice of conducting negotiations between representatives of groups or states involved in certain conflicts, with hopes of peacemaking.

Discovery

The required disclosure of pertinent facts or documents to the opposing party in a legal proceeding.

Dispute Review Board (DRB)

A one or three person board of alternative dispute resolution professionals contractually appointed to resolve [show_more more=More… less=Less…] construction project disputes presented by the Owner, Contractor or other stakeholder.[/show_more]

Document

Any writing or data compilation containing evidential information such as facts, opinions, statements, reasons, descriptions, [show_more more=More… less=Less…]legal arguments or any other information in any form such as an agreement, record, correspondence, tape, disk, request, notice, affidavit, memorandum or other writing. Documents shall include, but not be limited to, all written notifications and communications, pleadings, reports, photographs, bills, receipts, invoices, records maintained in the ordinary course of business, medical reports, contracts and any other written documents.[/show_more]

E

Early Neutral Evaluation (ENE)

An informal presentation where a third party neutral provides a candid assessment of the strengths and weaknesses of a case and[show_more more=More… less=Less…] attempts to narrow the issues in a dispute. The evaluation may be binding or non-binding.[/show_more]

Evaluative Mediation

Using this process, parties may “test” the potential outcomes of a case. The mediator allows the parties to present their factual and [show_more more=More… less=Less…]legal arguments. He or she may then offer his or her own assessment or predictions as to a trial outcome. It is often used for more difficult cases, in which the gap between the parties is large, the issues are somewhat complex and the stakes are high.[/show_more]

F

Facilitation

A collaborative process by which a neutral party seeks to assist a group of individuals or other parties to discuss constructively a [show_more more=More… less=Less…]number of complex, potentially controversial issues. The facilitator plays a less active role than a mediator in a facilitation process. [/show_more]

Facilitative Mediation

As opposed to the evaluative mediation style, facultative mediators rely on people skills and persuasion to guide the parties toward a realm of agreement.

Fact Finding

A process by which the facts relevant to a dispute are determined in order to decide a controversy.

G

Grievance

A grievance is generally defined as a claim by an employee that he or she is adversely affected by the misinterpretation or [show_more more=More… less=Less…]misapplication of a written company policy or collectively bargained agreement. To address grievances, employers typically implement a grievance procedure. The grievance procedure may also be part of a collective bargaining agreement.[/show_more]

H

Hybrid Process

A hybrid dispute resolution process combines elements of two or more traditionally separate processes into one. The most common hybrid[show_more more=More… less=Less…] process is mediation-arbitration, or “med-arb”, which uses the same individual or dispute resolution forum first as a mediator, and then if necessary, as an arbitrator. [/show_more]

I

Interim Order

A temporary order providing temporary or preliminary relief pending a hearing or a final arbitration award.

Interrogatory

A formal or written question asked to a witness, usually requiring an answer under oath.

J

Joint Session

A joint session is a meeting facilitated by the mediator where opposing parties and/or their attorneys face each other and speak directly to [show_more more=More… less=Less…]each other, rather than through the mediator in caucus.[/show_more]

K

K

No entry at this time.

L

Last-Offer Arbitration (Baseball)

Parties negotiate to the point of impasse, then respectively submit a final offer to the arbitrator whose sole responsibility is to select one or the other.

Litigation

A case, controversy, or lawsuit. The process of bringing and pursuing a lawsuit is called litigation. It is a contest authorized by law, in [show_more more=More… less=Less…]a court of justice, for the purpose of enforcing a right. Participants (plaintiffs and defendants) in lawsuits are called litigants. [/show_more]

M

Mediation

A structured settlement negotiation facilitated by a neutral third-party, the mediator, to achieve a resolution that satisfies all parties.

Mediation-Arbitration (Med-Arb)

A form of ADR that combines the collaboration of mediation with the authority of arbitration. The parties agree to mediate[show_more more=More… less=Less…] their dispute and, if unable to settle, they participate in binding arbitration using the same neutral. [/show_more]

Mediator

A neutral professional who facilitates negotiations between disputing parties and may evaluate the relative merits of their claims. Mediators do not impose decisions;[show_more more=More… less=Less…] instead, they help people craft solutions that will work for them.[/show_more]

Mediation Agreement

Any written agreement between the parties to resolve a dispute, claim or controversy through non-binding Mediation.

Mediation Conference

A non-binding settlement proceeding in which each party is given an opportunity to describe the facts of the case and explain its [show_more more=More… less=Less…]position to a Mediator who in turn meets privately with each side to evaluate their respective cases and to discuss potential settlement figures with a view toward guiding the parties to the settlement of their dispute. The hearing may be conducted in-person or via telephone.[/show_more]

Mediation Notice

A written notice which the Claimant files and serves upon the Respondent to initiate the claim and request Mediation. Also referred to as a Request For Mediation.

Mediative Process

A process whereby a third party mediator (neutral) works to facilitate a negotiated settlement between disputing parties. Only [show_more more=More… less=Less…]the interests and creativity of the parties and the mediator limit the terms of the agreement. There can be two or more disputing parties to a single mediation.[/show_more]

Mini-Trial

A highly structured, formalized and evaluative mediation process in which the parties cede a great deal of procedural [show_more more=More… less=Less…]control in order to reframe the dispute from the context of litigation to the context of a business problem. It requires the participation of non-legal party representatives with settlement authority who sit as a panel with the neutral.[/show_more]

Mock Arbitration

A mock arbitration is a simulated hearing before a single or multiple member panel conducted pursuant to the same rules and [show_more more=More… less=Less…]regulations as an actual arbitration hearing. It is designed as a predictive exercise to assist counsel to test the evidence and theories of the case, develop the most persuasive argument and improve the overall presentation.[/show_more]

Mock Trial/Moot Court

A mock trial is a simulation of a lower-court trial, while moot court simulates a hearing at the appellate level. Counsel preparing for a [show_more more=More… less=Less…]trial or an appeal might use a mock trial/moot court to test theories, practice presentation skills, and gain feedback from an experienced neutral.[/show_more]

N

Negotiation

A communication process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or [show_more more=More… less=Less…]potential disagreement. Negotiation has often been described as a bargaining and communication process with some degree of psychological confrontation. [/show_more]

Neutral

An individual who facilitates the ADR process, including mediators, arbitrators, private judges, facilitators, and special masters (or referees). Also known as “panelist.”

Neutral Fact-Finding

An investigative process in which a neutral “fact finder” independently determines facts for a particular dispute usually after the parties have reached an impasse. 

Neutral Evaluation

A non-binding process in which the parties to a dispute retain a neutral to provide an e valuation based solely on the merits of the case.

Neutral Fact-Finding

An investigative process in which a neutral “fact finder” independently determines facts for a particular dispute usually after the parties have reached an impasse. 

Non-Binding Arbitration

A hearing process that looks and feels like arbitration, but is advisory and non-binding.

O

Ombudsman

An organizationally designated person who confidentially receives, investigates, and facilitates resolution of complaints.

Online Dispute Resolution (ODR)

Online Dispute Resolution (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between [show_more more=More… less=Less…]parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three.[/show_more]

Order

Any order issued by an Arbitrator establishing specific rights and obligations of the parties. 

P

Panelist

An individual who facilitates the ADR process, including mediators, arbitrators, private judges, facilitators, and special masters (or referees). Also known as “neutral.”

Parties

Those persons or entities in dispute. When these disputants are represented by legal counsel, the counsel will then be treated as the party.

Private Judging

A private trial approach midway between arbitration and litigation in terms of formality and control of the parties conducted by a[show_more more=More… less=Less…] former judge, very similar to a conventional trial in that judgment may be appealed for errors of law or as against the weight of the evidence. [/show_more]

Private Trial/Judge Pro Tem

Private trials are conducted in essentially the same manner as court trials. All law and motion matters, discovery disputes and case[show_more more=More… less=Less…] management conferences, as well as the trial, are heard by the temporary judge.[/show_more]

Parties

Those persons or entities in dispute. When these disputants are represented by legal counsel, the counsel will then be treated as the party.

Q

Qualified Statement of Independence

Every arbitrator must be and remain impartial and independent of the parties and shall provide a qualified statement regarding impartiality or independence. 

R

Reasoned Decision

An arbitration award that incorporates the written findings of fact, conclusions of law or reasons for the award rendered.

Reply

A written response by the Respondent to a Demand for Arbitration filed by the Claimant. 

Representative

Any individual, including an attorney, who represents a party in an Arbitration or Mediation.

Request For Meditation

A written notice which the Claimant files and serves upon the Respondent to initiate the claim and request Mediation.

Respondents

The responding party in a dispute, also known as defendants. 

Receivership

The position or function of being a receiver in charge of managing assets and administering the property of others. Among other duties, a[show_more more=More… less=Less…] receiver may be appointed to aid in temporarily running a business during pending litigation, assist with the winding up of a business, or oversee the sale of assets.[/show_more]

S

Sanctions

May include the dismissal of the claim or counter-claim, preclusion of evidence, admission of facts, payment of fees, costs or[show_more more=More… less=Less…] attorney’s fees or the granting of an award. The Arbitrator may impose sanctions against a party, a representative or both.[/show_more]

Service

The methods of delivery specified in Rule No. 11 by which a party may deliver an Arbitration Notice or Reply, or any other [show_more more=More… less=Less…]documents or written communications to another party or to the NAM Administrator.[/show_more]

Settlement Conference

An ADR technique either permitted or required by statute in many jurisdictions as a procedural step before trial, in which typically [show_more more=More… less=Less…]a retired or former judge conducts the mediation. These judges play a much stronger authoritative role than mediators since they also provide the parties with specific substantive and legal information.[/show_more]

Signature or Signed

A mark or symbol intended as an attestation, produced by reliable means, intended as a signature.

Special Master

A third-party neutral that assists the parties manage discovery, narrow issues, agree to stipulations, find facts, and, occasionally, reach settlement.

Stipulated Judgement

A judgment which both sides agree to have entered. If the agreement is not followed, the plaintiff can file an affidavit of default [show_more more=More… less=Less…] wherein the judgment can be entered without notice to the defendant(s). This default judgment is binding and failure to comply with it means that an enforcement action could be taken.[/show_more]

Summary Jury Trial

A highly structured, formalized and evaluative mediative process in which a private “jury” is assembled to hear the case. [show_more more=More… less=Less…]The jury decision is non-binding and mediation proceedings typically follow.[/show_more]

T

Two-Track Approach

Involves use of ADR processes or traditional settlement negotiations in conjunction with litigation. Representatives of the disputing [show_more more=More… less=Less…]parties who are not involved in the litigation are used to conduct the settlement negotiations or ADR procedure. The negotiation or ADR efforts may proceed concurrently with litigation or during an agreed-upon cessation of litigation. [/show_more]

U

Umpire

A third party neutral chosen to decide a question in a controversy that has been submitted to Arbitration but has not been [show_more more=More… less=Less…]resolved because the arbitrators cannot reach agreement.[/show_more]

V

Voluntary Arbitration

Voluntary arbitration is arbitration by the agreement of parties. It is a binding adversarial dispute resolution process in which the [show_more more=More… less=Less…]disputing parties choose one or more arbitrators to hear their dispute and to render a final decision or award after an expedited hearing.[/show_more]

W

Win-Lose Negotiations

Win-Lose refers to a distributive negotiation where one negotiator’s gain the other negotiator’s loss. Both negotiators are typically [show_more more=More… less=Less…]competing to take away or claim the most value from their negotiation. Also called the ‘fixed-pie’ scenario, in that there is only a limited amount to be distributed.[/show_more]

Win-Win Negotiations

Win-Win are those negotiations in which each party walks away from the bargaining table having achieved its goals within the confines of [show_more more=More… less=Less…]an integrative, or value-creating, bargaining process rather than through a haggling, or distributive, bargaining process.[/show_more]

Witness

An individual who may or may not be a party, who will appear at the hearing and give sworn testimony regarding the dispute, claim or controversy.

Written Submissions

The legal memorandum, position paper, case law, deposition transcript, witness statements, expert reports, photographs, [show_more more=More… less=Less…]bills, receipts, invoices, or any other written documentary evidence submitted by a party in support of its position.[/show_more]

X

X

No entry at this time.

Y

Y

No entry at this time.

Z

Zone of Possible Agreement (ZOPA)

A zone of possible agreement (ZOPA) is a bargaining range in an area where two or more negotiating parties may find common ground. A[show_more more=More… less=Less…] ZOPA can only exist when there is some overlap between each party’s expectations regarding an agreement.[/show_more]