The ABCs of ADR

Welcome to the most comprehensive Glossary of Alternative Dispute Resolution (ADR) terminology online. You can learn about each concept below, with reference links to more detailed expert commentary from dispute resolution thought leaders, experts, and practitioners.

>>> Additionally, if you have a pending dispute or litigated case you’d like expert help on, we can connect you with handpicked mediators and arbitrators – ready to help resolve your dispute.

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 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.

Agenda

A formal agreed-upon list of things to be discussed during the negotiation. Usually, whoever sets the agenda can many times also control what is discussed during the negotiation.

Alternative Dispute Resolution (ADR)

A full range of problem-solving dispute resolution processes – between direct negotiation to litigation – wherein a neutral professional assists the parties in reaching an amicable solution, a binding agreement, or another resolve to a dispute.

Anchoring

In negotiation, “anchoring” refers to a cognitive bias overemphasizing the importance of the first offer when establishing the value of something.  It is sometimes referred to as “setting the size of the dance floor.”

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 enforcement in a public court pursuant to the rules of the relevant jurisdiction for enforcement of arbitral awards.

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 the dispute leading to a binding Arbitration Award.

Arb-Med

A method of dispute resolution in which a third-party neutral sits as an arbitrator, and makes a determination. Then, without revealing the award, he or she mediates the dispute and attempts to help the parties reach a resolution. If mediation is unsuccessful, the arbitral award takes effect.

Arbitrability

In arbitration, the arbitrability of a claim is a determination of whether or not the dispute may be fairly decided in a private arbitral forum. Often, the arbitrator on a given issue will determine whether the claim is arbitrable.

Authority

Authority to make the agreement. The negotiator needs to confirm that parties to a negotiation have requisite decision-making authority or direct access to the decision-maker, to be able to reach a binding agreement.

Award

The decision of the arbitrator.  Depending on the rules agreed upon, it may or may not be in writing, and may or may not state the arbitrator’s reasoning.

B

Baseball Arbitration

Also known as “final offer” arbitration. A form of dispute resolution in which each party submits its best offer to the arbitrator, who must select one of them. In theory, the process forces both parties to be reasonable, or risk driving the arbitrator to select the opponents’ number.

BATNA

BATNA is an acronym popularized by Roger Fisher and William Ury which stands for  ‘Best Alternative to a Negotiated Agreement’. 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.

Bracketed Arbitration (or “high-low” arbitration)

An arbitration proceeding whereby the parties agree to “bracket,” or limit the possible range of 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.

Binding Mediation

C

California Arbitration Act

Any arbitration that takes place in California must comply with the California Arbitration Act.

Case Manager

An ADR employee is assigned to coordinate and facilitate mediations and arbitrations to their conclusion, including Mediator/Arbitrator selection, scheduling, billing, communications, and client relations.

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 parties to work out problems that occur during the mediation process.

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.

Cognitive Biases

A predictable pattern of illogical thought affecting a disputant’s decision-making behavior. Researchers in psychology and economics has identified dozens of these biases that affect decision-making. Objective information gathering is said to be an effective remedy to cognitive biases.

Community Mediation

Starting in the 1970s, the community mediation movement was part of a wider effort toward “popular justice.” It attempted to deal with the inefficiencies and inequalities of the legal system by moving certain types of disputes to a peer-reviewed system stressing self-determination. This emphasis, and the effort to resolve “legal” problems outside the legal system, marked the beginning of modern ADR.

Competitive Negotiation

An aggressive negotiating style that seeks to maximize “value claiming” at the expense of the other negotiator. It can interfere with important relationships or blind a negotiator to opportunities for increased gain through cooperation.

Compromising

A negotiating style is based on the idea that participants must all give something up to reach a settlement. It tends to reach worse results than other styles because it begins with the idea of significant concession in mind. Such concessions may be greater than necessary, given the parties’ relative needs, power, resources, and expectations.

Cooperative Negotiation

A negotiating style based on problem-solving rather than value claiming. Cooperative negotiators share information about needs and goals and focus on maximizing joint gains. Such negotiators do very badly when faced with their competitive counterparts, who claim about 90% of the value of the transaction

Conciliation

A private, voluntary process in which the parties appoint a neutral third-party professional to investigate the dispute and provide a non-binding report of recommendations for resolve.

Confidentiality

Confidential information is information, which has been the subject of efforts to keep it secret. It is not always inadmissible, but it is usually subject to a more stringent standard of discovery.

Confirmation Bias

The tendency to emphasize facts that support one’s preferred position, in deemphasize or completely disregard facts that do not.

Confirmation

A summary court process validating an arbitration award and rendering it enforceable as a judgment. Confirmation must take place unless the party opposing it shows one of the narrow grounds for vacating, modifying, or correcting an arbitral award.

Conflict

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

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 goods or services for personal, family, or household use.

Counterclaims

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

D

Death Spiral

In negotiation, the term “death spiral” refers to an endless cycle of retaliation taken in response to another’s aggressive negotiation moves. It often leads to a total breakdown in negotiation, unless at least one party makes efforts to restore the relationship, despite prior betrayal.

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) 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 construction project disputes presented by the Owner, Contractor, or another stakeholder.

Dispute vs. Conflict

John Burton distinguishes the two based on issues in contention. Disputes are short-term disagreements that are relatively easy to resolve. Long-term, deep-rooted problems that involve seemingly non-negotiable issues and are resistant to resolution are referred to as conflicts.

Distributive Negotiation

Distributive negotiation is one in which the goal of the negotiation is simply to divide a resource, such as money. It lends itself to competitive, value-claiming behavior.  Participants often overlook opportunities for joint gain in an effort to “win.”

Divorce Mediation

Divorce mediation is the process of allowing a third-party neutral guide the negotiations and settlement discussion within a divorce case. This will usually include determinations of custody, support, and asset division.

Document

Any writing or data compilation containing evidential information such as facts, opinions, statements, reasons, descriptions, 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.

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 attempts to narrow the issues in a dispute. The evaluation may be binding or non-binding.

Emotional Contagion

A term coined by Dr. Sigal Barsade of Yale to reflect the fact that strong emotions (especially negative ones) spread from the emotional person to those nearby. This is important because emotional states impact bargaining behavior.

Emotional Hangover

The research observation that strong emotions persist regardless of their origin, and can affect negotiating behavior for hours or even days after they are experienced.

End Run

Going around the person you are negotiating with to resolve the issue with someone else – generally someone of higher authority.

Evaluative Mediation

Using this process, parties may “test” the potential outcomes of a case. The mediator allows the parties to present their factual and 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.

Expanding the Pie

In negotiation, a term referring to outcomes that exceed those possible in a purely distributive situation (i.e., one in which the parties “divide up the pie.”)

F

Facilitation

A collaborative process by which a neutral party seeks to assist a group of individuals or other parties to discuss constructively a number of complex, potentially controversial issues. The facilitator plays a less active role than a mediator in the facilitation process.

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.

Federal Arbitration Act (“FAA”)

In the United States, The Federal Arbitration Act of 1925 (Title 9 USC sec. 1 et seq. reflects Congress’ rejection of historical court hostility to arbitration. It establishes the idea that arbitration clauses are “valid, irrevocable, and enforceable,” and sets procedures and minimum rules for federal arbitrations.  It also establishes the US’ agreement to the international commercial arbitration treaty known as the New York Convention.

Fixed Pie

There is a fixed amount that must be shared by the parties involved in the negotiation. Whatever one party gets comes at the expense of the other party.

Framing

“Framing” refers to the process of restating facts or opinions to achieve a desired mental or emotional state in the listener. Mediators often use this technique to take the “sting” out of offensive or disruptive statements, to emphasize important aspects of those statements, or to present settlement proposals in the best possible light.

G

Grievance

A grievance is generally defined as a claim by an employee that he or she is adversely affected by the misinterpretation or 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.

H

Hybrid Process

A hybrid dispute resolution process combines elements of two or more traditionally separate processes into one. The most common hybrid 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.

High-Ball

Start high with your demands to set the other side’s expectations. Sellers often start high knowing they can reduce the price.

High-Low Arbitration

A method of arbitration placing prehearing high and low limits on the amount of the award.

I

Impasse

An argument where no agreement is possible. A deadlock. All progress is stopped.

Integrative Bargaining

A form of cooperative negotiation (see above) that searches for ways to increase the mutual gain by focusing on parties’ different interests, or their no different priorities for the same interest. Ideally, all interests are addressed by an agreement resulting from the bargaining. Participants work together to “expand the pie” (see above) for everyone.

Interests

The underlying principles, goals, desires, and needs truly drive one’s negotiating behavior.

Interim Order

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

Interrogatory

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

Intractable Conflicts

Intractable conflicts are disputes and conflicts that are unsolvable by most dispute resolution processes. They are often long, complex conflicts that the parties are unable to solve.

J

Joint Sessions

A joint session is a meeting facilitated by the mediator where opposing parties and/or their attorneys face each other and speak directly to each other, rather than through the mediator in caucus.

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 a court of justice, for the purpose of enforcing a right. Participants (plaintiffs and defendants) in lawsuits are called litigants.

M

Mandatory Settlement Conference (“MSC”)

A non-binding settlement proceeding in which each party is given an opportunity to describe the facts of the case and explain its 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.

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 – also known as Binding Mediation. The parties agree to mediate their dispute and, if unable to settle, they participate in binding arbitration using the same neutral.

Mediator

A neutral professional who facilitates negotiations between disputing parties and may evaluate the relative merits of their claims. Mediators do not impose decisions; instead, they help people craft solutions that will work for them.

Mediation Agreement

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

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 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.

Mini-Trial

A highly structured, formalized, and evaluative mediation process in which the parties cede a great deal of procedural 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.

Mock Arbitration

A mock arbitration is a simulated hearing before a single or multiple member panel conducted pursuant to the same rules and 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.

Mock Trial/Moot Court

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

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 potential disagreement. Negotiation has often been described as a bargaining and communication process with some degree of psychological confrontation.

Neutral

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

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 parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three.

Opening Statement

The mediation process begins with opening statements where the mediator and parties are afforded an opportunity to set the stage for ensuing discussions.

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 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.

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 management conferences, as well as the trial, are heard by the temporary judge.

Privilege

The companion provision to mediation confidentiality is mediation privilege, which makes evidence of mediation communications inadmissible in future legal proceedings.

Parties

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

Pre-Arbitration

Pre-arbitration is another term for the chargeback policy and procedure in the credit card industry. It is the procedure to determine whether or not the cardholder is liable for the charge they are disputing.

Predispute Arbitration Clause

A predispute arbitration clause is a clause in an agreement between the parties that they will submit any and all disputes arising from the agreement to arbitration.

Pre-Mediation

Pre-Mediation is the process where the mediator meets with each of the parties individually prior to the mediation. This helps the mediator understand the case and what needs to be accomplished at mediation.

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

Real Estate Arbitration 

Real estate industry dispute solutions rely on arbitration, as a form of alternative dispute resolution (ADR), and a legal technique for the resolution of disputes outside the courts.

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 Mediation

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 receiver may be appointed to aid in temporarily running a business during the pending litigation, assist with the winding up of a business, or oversee the sale of assets.

S

Sanctions

May include the dismissal of the claim or counter-claim, preclusion of evidence, admission of facts, payment of fees, costs or attorney’s fees, or the granting of an award. The Arbitrator may impose sanctions against a party, a representative, or both.

Service

The methods of delivery specified in Rule No. 11 by which a party may deliver an Arbitration Notice or Reply, or any other documents or written communications to another party or to the NAM Administrator.

Settlement Agreement

The document evidences the settlement between parties and binds the parties following a negotiation to adhere to the terms agreed upon as a result of the negotiation.

Settlement Conference

An ADR technique is either permitted or required by statute in many jurisdictions as a procedural step before trial, in which typically 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.

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 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 enforcement action could be taken.

Summary Jury Trial

A highly structured, formalized, and evaluative mediative process in which a private “jury” is assembled to hear the case. The jury decision is non-binding and mediation proceedings typically follow.

T

Transformative Mediation

A newer form of mediation that relinquishes much of the control to the parties in both the procedure and the outcome. Transformative Mediation seeks to transform the conflict by empowering the parties to agree.

Two-Track Approach

Involves the use of ADR processes or traditional settlement negotiations in conjunction with litigation. Representatives of the disputing 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.

U

Umpire

A third-party neutral is chosen to decide a question in a controversy that has been submitted to Arbitration but has not been resolved because the arbitrators cannot reach an agreement.

V

Voluntary Arbitration

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

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 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.

Win-Win Negotiations

Win-Win is those negotiations in which each party walks away from the bargaining table having achieved its goals within the confines of an integrative, or value-creating, bargaining process rather than through a haggling, or distributive, bargaining process.

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, bills, receipts, invoices, or any other written documentary evidence submitted by a party in support of its position.

X

No entry at this time.

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 ZOPA can only exist when there is some overlap between each party’s expectations regarding an agreement.

error: ADR Times content is protected!