Glossary
Adversarial Proceedings – in the UK legal system, the parties act as adversaries and the court must decide whose evidence they believe is more credible
ADR – alternative dispute resolution – this term covers all forms of dispute resolution outside of the established court, arbitration and adjudication systems. The various methods covered are included within the ADR toolkit
ADR Toolkit –
The tools available to assist in the settlement of disputes:-
a Mediation
b Early Neutral Evaluation – to obtain a view on the likely outcome from a qualified professional
c Expert Determination – to ask an expert to determine a crucial issue within any dispute to allow parties to negotiate a settlement thereafter
Arbitration – a formal procedure, slightly less expensive than full blown litigation with its own structure and rules
Authority to make decisions – to agree a settlement the parties present must be authorised to make a decision. This is particularly important in respect of financial transactions to ensure that whatever may be agreed upon the parties can bind their organisations or have access to a person with sufficient authority to do so (i.e. by telephone)
Caucus – the term used to describe a mediators time with one or other party in confidential discussion
Certainty – in mediation, the parties are in control of their own destinies and any agreement reached has contractual force which can be enforced by the courts.
Comfortable – the best environment for making reasonable forward-thinking decisions
Confidentiality – not to disclose what has been discussed and/or agreed at a mediation without the consent of the other party. Within the mediation itself the mediator will not disclose what has been discussed in caucus without the consent of the party
Construction (disputes) – mediation has been used effectively within construction disputes particularly where time is of the essence. In long projects a mediation role can be incorporated in the contract terms.
Contractors/Contractual disputes – mediation can be useful at any time within the contract period and can be used particularly effectively where matters are ongoing helping strengthen existing relationships
Convenient – once a referral to mediation has been made, the mediator will try to facilitate taking account of the parties’ wishes both as to venue and date for the mediation. The time limits and allowances in more formal procedures do not apply.
Co-operation not Competition – settlement usually requires some compromise on both sides and some perspective as to the nature and strength of the case on the other side. Parties are encouraged to consider questions realistically balancing options and considering their relative merits. The bird in the hand worth two in the bush?
Costs – Cost Saving – mediators charge by the day; the half day and/or the hour. In addition a mediator will expect to recover expenses. Costs, subject to other agreement, are usually born equally between the parties. Mediation, if successful and 70-80% are, will reduce expenditure of time, money and effort.
Early Neutral Evaluation – an expert is invited to give a view on a case or the most important issue in a case. The view is non-binding but the result will often lead to agreement by negotiation as the parties are given an independent view of the likely decision by a court.
Emotions – disputes often harden in to matters of principle becoming emotionally charged. I have had parties in tears at mediations grieving for a perceived loss. A dispute can take on a life of its own and parties need to surrender vague hopes to consider and accept realistic settlement proposals.
Employment disputes – whether in dismissal, redundancy, continuing disputes or personality clashes, mediation has a role to play. Unlike litigation, any remedy agreed between the parties can be incorporated and where people are encouraged to think outside the box.
Expert determination – this is a variation on Early Neutral Evaluation – an expert is asked to give an opinion on points of law or evidence which are vital to the prospects of success. Usually this opinion is not binding but again used as a basis for guided negotiation.
Fast – a mediation takes no more than a day (generally) and can usually be organised quickly.
Friends – With the shuttle diplomacy process of the mediator running between rooms, even if you are tasked to do something, things can get boring. It is worth bringing things to read or do and if attending without legal representation it may be worth bringing a friend for company.
Grieving – Surprisingly, perhaps, people can get attached to disputes and their disappearance can leave a void. This needs to be recognised, where appropriate, and the mediator must be ready to allow one party to express their emotions.
Guided Negotiation – Mediation is often described as guided negotiation, a process in which parties are prompted to challenge preconceptions and look at the dispute in a wider context. It can also overcome the pitfalls of entrenchment.
Independent – A mediator can bring a new perspective to what appears to be an intractable situation, by looking with fresh eyes. In most cases the mediator will be new to the dispute.
Interrogatory – In France and other countries following a constitutional tradition, investigation of the circumstances of the crime is carried out by an investigating magistrate. The most similar example is the presentation of evidence requested and examined by a coroner. The system used in the UK is adversarial, see above
Legally Binding – agreement reached during a mediation is written down and signed by both parties and the mediator as witness. The signed agreement is a legally binding contract and breaches of it can be enforced in the usual way.
Mediators
Neighbour disputes – the informality of mediation can be helpful in finding resolution to neighbour disputes. On two occasions, due to age or infirmity of one or other party, I have undertaken such mediation at the homes of the persons concerned.
Negotiated Settlement – if a solution can be negotiated directly with the other side, mediation will not be necessary. Often, where mediation does not result in a solution on the day, the parties reach agreement before the trial date assisted by the developments in the mediation.
Non-threatening – the lack of formal procedures allows a mediator to ensure that the location for the mediation is as relaxed and comfortable as possible. I have undertaken successful mediations where the parties have never been in the same room.
Pride/ Principle – It might appear that matters of principle are incapable of being solved through mediation. A compromise should always
Principal – a principal party is able to make a decision taking account of all relevant circumstances and information.
Principled Negotiations – negotiation is part of everyday life. Who’ll make tea? Take the kids to school or make an unpleasant phone call? Often, outside of the home environment people look at all or nothing but this black and white view of the world rarely works. The book “Getting to Yes” (by Ury and Fischer) has become a seminal work with its de-emphasis on Win/Lose and focus on how all parties should be able to achieve some benefit from the negotiation usually involving a face to face meeting for the first time since the identification of the dispute.
Private Meetings – also known as caucuses where the mediator meets with one or other party in private.
Procedures – Unlike litigation and arbitration there are no “formal” procedures that need to be followed. This allows matters to be dealt with quickly and in accordance with the parties’ wishes. It is important that each party knows the other parties position. The mediator will request statements from the parties setting out their respective cases and where available confidential statements that can give the mediator a better understanding of the relevant information causing the dispute.
Representatives – may come with the client to a mediation, however, parties also come unrepresented. The important thing is that parties should feel comfortable and part of a mediators role is to ensure that parties do not feel or otherwise prejudiced if the disputant has come with a bigger team.
Rules – see Procedures
Saving Face – a mediator needs to be skilled at reading situations and assisting parties who may have backed themselves in to a corner. This can be particularly important in dealing with people from different cultures where knowledge of social and linguistic norms may assist in finding a means correcting misunderstandings.
Scheme Mediation – in the insurance and accident fields schemes for mediation are developing and a leader in the field is Interresolve (link)
Telephone mediation – this has been used with some success in small claims
Third Party Facilitator – another description applicable to a mediator
Time Limited Mediation – for smaller value disputes and those recommended by the courts a period of 2-3 hours may be allowed for the mediation. I have been involved in a number of these in courts around the country and they require slightly different skills particularly in relation to time management.
Without Prejudice – the proceedings in a mediation are without prejudice to any action/ proceedings if no resolution is reached. However, they can be of assistance in limiting points requiring argument in court or other tribunals thereby reducing future costs.