Terminology and Taxonomy

Alternative dispute resolution (ADR) and mediation are definitely on the move. Preaching to the choir of supporters, there is no doubt about the difference in terminology and use. However, a great number of user’s still don’t know about the characteristics of ADR, mediation and other tools of constructive conflict resolution.
For a fresh start into 2009, here is a concise glossary of terms and definitions, commonly used in the field.

ALTERNATIVE DISPUTE RESOLUTION (ADR)
Refers to dispute resolution procedures utilized outside of court, cost effective litigation management and litigation prevention techniques

BRAINSTORMING
The process of inventing options and developing alternatives towards achieving a settlement. This is an open forum where neither party is obligated with respect to the ideas generated

CONFIDENTIALITY
Private matters discussed and held in confidence by the neutral third party

FACILITATE
To make easy or easier…to lighten the work of; assist; help [Webster’s New World Dictionary]

FACT FINDING
Informal process whereby a neutral third party investigates the question in issue and submits a report or testifies in court.

INTERESTS
Concerns, desires, wants. What caused people to take a position

NEUTRAL
Impartial Third Party; a disinterested party with no “connection” to the matter

POSITIONS
What people in a dispute want; something decided upon

WIN – WIN
A proposition in which both sides of a dispute have had an opportunity to explore positions, interests and options for resolution, and ultimately structure an agreement that has “appeal” to both.

A. Mediation
DEFINITION
A conflict regulation model where a third and accepted party helps or assist two or more conflicting parties to find a new ground for communicating their issues in a constructive manner.

NEUTRAL
Impartial third party selected by parties to assist in identification and clarification of issues, generation of options, and facilitation of a mutually acceptable agreement

ROLE OF LAWYERS
May present case, although parties usually communicate directly; may assist client regarding clarification of legal issues; drafts agreement

ROLE OF PARTIES
Able to ventilate feelings, tell their story and negotiate directly; participate in creative problem-solving

SCOPE OF PROCESS
Flexible; voluntary; no rules of evidence; private; confidential

OUTCOME
Mutually satisfactory resolution; relationship maintained; Ideally: Win-Win result for all parties. Often: Acceptable compromise

B. Arbitration
DEFINITION
Adversarial system of justice designed to present civil case to a neutral third party for decision

NEUTRAL
Usually retired judge or lawyer who serves as a professional third party neutral; sometimes non-lawyers act as neutrals particularly in labor disputes

ROLE OF LAWYERS
Advocate positions of client

ROLE OF PARTIES
Discuss case strategy with lawyer; be available to respond to discovery; answer questions

SCOPE OF PROCESS
Similar to lawsuit; discovery commenced, experts consulted; preparation for hearing; adversarial proceeding

OUTCOME
Win-Lose; costly; often time consuming

C. Negotiation
DEFINITION
Voluntary, informal, unstructured process used by disputants to reach a mutually acceptable agreement

NEUTRAL None

ROLE OF LAWYERS
May or may not be appointed by disputants to represent them in negotiating

ROLE OF PARTIES
May represent themselves in direct conversations with opposing side; high personal involvement; normal communication problems

SCOPE OF PROCESS Unstructured, voluntary and non-binding; position based

OUTCOME
Ideally: a mutually acceptable agreement based on shared interests; Realistically: Varies from Win-Win to Lose-Lose

D. Litigation
DEFINITION
Adversarial system of justice designed to present civil case to a court for decision

NEUTRAL
Judge employed by county to issue binding decision; jury selected from geographic area

ROLE OF LAWYERS
Advocate positions of client

ROLE OF PARTIES
Discuss case strategy with lawyer; be available to respond to discovery; answer questions

SCOPE OF PROCESS
Lawsuit filed and answered; discovery commenced, experts consulted; trial preparation; trial

OUTCOME
Win-Lose; costly; time consuming

E. Mini-Trial
DEFINITION
Abbreviated, informal presentation of case by the parties to a senior claims or business representative intended as a prelude to settlement discussions. Primarily used in large, complex, or multi-party cases

NEUTRAL
Impartial third party may be selected by parties, but not always, to preside over
presentations and assist the parties in eliciting information

ROLE OF LAWYERS
Summary presentation of case in adversarial manner

ROLE OF PARTIES
Observe, listen to case from both sides, ask and answer questions; make an informed evaluation; engage in settlement discussions

SCOPE OF PROCESS
Loose structure, flexible; agreement of parties; non-binding; confidential

OUTCOME
Negotiated settlement based on the full range of needs and objective of the parties.

F. Hybrids
HYBRID PROCEDURES/ COMBINED PROCESSES FACT FINDING
Process used in conjunction with other ADR procedures by which facts relevant to a controversy are determined.

MEDIATION/ ARBITRATION (MED/ARB)
Parties agree to mediate with stipulation that any issues not settled will be resolved by binding arbitration.

MULTI-STEP ADR
Progressive series of ADR processes utilized by parties to an agreement or dispute designed to give the parties an opportunity for achieving a resolution through the most effective forum. The process begins with low cost and informal procedures and moves towards more formal and costly methods. For example, if negotiations fail, mediation occurs; if that is unsuccessful, arbitration takes place.

TWO TRACK APPROACH
ADR processes or traditional settlement negotiations used simultaneously with litigation. Settlement discussions are often conducted by persons not involved in the litigation.

DAY BASEBALL
The parties give the neutral, at the end of the hearing, their last, best offer/demand. Having reviewed the evidence and listened to the testimony, the neutral picks one figure or the other as the award. This process encourages both sides to be as reasonable as possible in presenting their final positions.

NIGHT BASEBALL This option is similar to Day Baseball, except the parties seal their last, best offers instead of giving them to the neutral. After the neutral renders a decision, the party whose number is mathematically closer to the neutral’s award prevails.

TELEMEDIATION Similar to Confidential Listener, except that an ADR Provider staff person works with each party to explore the respective merits of the party’s case and attempts to mediate a resolution over the phone.

G. The Listener (Doctor-Patient-Model)
DEFINITION
A neutral third party appointed by the disputants to obtain a proposed final settlement offer from each party. Without disclosing the content, the Confidential Listener advises the parties if their offers are within a specified range. The range usually is agreed upon by the parties in advance, along with a mechanism for dividing the difference in the event that the offers overlap. If the offers are outside the specified range, the Confidential Listener may assist the parties in bridging the gap
and achieving a final settlement

NEUTRAL
Impartial third person selected by parties to listen to offers and facilitate settlement negotiations

ROLE OF LAWYERS
Can provide offer to listener and engage in settlement negotiations

ROLE OF PARTIES
Can provide offer to listener and engage in settlement negotiations

SCOPE OF PROCESS
Pursuant to agreement of parties; sometimes occurs during mediation as a means of closure; somewhat structured to ensure confidentiality

OUTCOME Negotiated settlement; Win – Win

H. Settlement
DEFINITION
Neutral individual, often a retired judge or professional attorney/mediator, listens to abbreviated presentation of case and renders an advisory opinion on factual or legal issues, as well as damages

NEUTRAL
Selected by parties or court to evaluate strengths and weaknesses of case; assists parties to reach settlement

ROLE OF LAWYERS
Summary presentation of case in best possible light; prepare client for negotiating

ROLE OF PARTIES
Available to answer questions, hear the other side’s case; engage in settlement discussions

SCOPE OF PROCESS
Voluntary or court ordered; loose structure; non-binding; no witnesses; private; confidential

OUTCOME
Advisory evaluation designed to narrow issues and assist parties in settlement negotiations

I. Check-List for Conflict Management
Step 1: Identify The Issues In Dispute

* Coverage
* Personality Related
* Liability
* Evidence
* Damages
* Credibility

Step 2: What’s At Stake?

What are the Insurer’s Interests?
What are the Claimant’s Interests?
What are the Plaintiff Attorney’s Interests?
What are the Insured’s Interests?
Are there any Critical or Key Controlling Interests?
What does each Party See as their Best Option?
What are the Realities vs. the Perceptions?

Step 3: Critical Information Analysis

What Information do We Need to Evaluate our exposure?
What Information do We Need to affect the Outcome?
What Information do They Need?
What Will it Cost to Get That Information?
Does “What’s at Stake” Justify Getting the Information?

Step 4: Possible ADR Outcomes

Given the Issues, Stakes, Critical Information, etc.:
What are the Pros and Cons of each Process?
Are we Ready to Present?
Select our Preferred ADR Process.
Look to See if We Need an ADR “Plan B.”

Step 5: Potential Proposals

What are the Proposals which Could be Made?
What Proposals Appear to be in Our Best Interest?
What Proposals do We think They will Consider?
What is Our Preferred Proposal?
What Objections can we Expect?

Step 6: Implement The Plan

Prepare our “Proposal” Conversation, Including:

* The Issues In Dispute – Get Confirmation!
* The Other Options We Considered and Dismissed
* The Mutual Benefits of Our Proposal
* Make our Proposal
* Handle Questions and Objections – Negotiate
* Get an Agreement on What will be Done