Some new terms and the ambiguous use of old ones characterize the terminology being used to describe innovative conflict resolution processes. For example, the word mediation, traditionally viewed as a formal, structured process, is now being used by some to describe any effort by a third-party neutral to bring disputants to a voluntary settlement of their differences. Others have coined phrases such as Rent-a-Judge to describe a variation of the arbitration process. The following is intended to clarify some of the common terminology in the field of alternative dispute resolution.
Alternative Dispute Resolution mechanisms or techniques generally are intended to mean alternatives to the traditional court process. They usually involve the use of impartial intervenors who are referred to as third parties (no matter how many parties are involved in the dispute) or neutrals. Some define Alternative Dispute Resolution more broadly to mean finding better ways to resolve disputes, including those that have not reached and may never reach the courts or other official forums. Others place the emphasis specifically on the need for ways to alleviate the burden on courts.
Alternative dispute resolution is not a new concept to the judiciary. Many states encourage and utilize Diversion programs which remove less serious criminal matters from the formal administration of justice system. Most civil cases are settled before going to trail by using a variety of techniques to bring about voluntary settlements including Pretrial settlement Conferences, mediation by magistrates and, at times, mediation in chambers by the judge.
Arbitration, widely used in commercial and labor-management disagreements, involves the submission of the dispute to a third party who renders a decision after hearing arguments and reviewing evidence. It is less formal and less complex and often can be concluded more quickly than court proceedings. In its most common form, Binding Arbitration, the parties select the arbitrator and are bound by the decision, either by prior agreement or by statute. In Last Offer Arbitration, the arbitrator is required to choose between the final positions of the two parties. In labor-management disputes, Grievance Arbitration has traditionally been used to resolve grievances under the provisions of labor contracts. More recently, Interest Arbitration has been used when collective bargaining breaks down in the public sector, where strikes may be unlawful.
Court-Annexed Arbitration is a newer development. Judges refer civil suits to arbitrators who render prompt, non-binding decisions. If a party foes not accept an arbitrated award, some systems require they better their position at trial by some fixed percentage or court costs are assessed against them. Even when these decisions are not accepted, they sometimes lead to further negotiations and pretrial settlement.
Conciliation is an informal process in which the third party tries to bring the parties to agreement by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement, either informally or in a subsequent step, through formal mediation. Conciliation is frequently used in volatile conflicts and in disputes where the parties are unable, unwilling or unprepared to come to the table to negotiate their differences.
Facilitation is a collaborative process used to help a group of individuals or parties with divergent views reach a goal or complete a task to the mutual satisfaction of the participants. The facilitator functions as a neutral process expert and avoids making substantive contributions. The facilitators task is to help bring the parties to consensus on a number of complex issues.
Fact Finding is a process used from time to time primarily in public sector collective bargaining. The Fact Finder, drawing on both information provided by the parties and additional research, recommends a resolution of each outstanding issue. It is typically non-binding and paves the way for further negotiation and mediation.
Mandated Settlements and Negotiated Settlements. Alternative dispute resolution techniques involving the use of neutrals are often divided into two categories: (1) settlements negotiated by the disputants and (2) settlements mandated by a third party. A more recent development has been the merging of the two; if the parties are unable to resolve their differences voluntarily, the third party is authorized to dictate the terms of the settlements (see Med-Arb below).
Med-Arb is an innovation in dispute resolution under which the med-arbitrator is authorized by the parties to serve first as a mediator and, secondly, as an arbitrator empowered to decide any issues not resolved through mediation.
Mediation is a structured process in which the mediator assists the disputants to reach a negotiated settlement of their differences. Mediation is usually a voluntary process that results in a signed agreement which defines the future behavior of the parties. The mediator uses a variety of skills and techniques to help the parties reach a settlement but is not empowered to render a decision.
The Mini-Trial is a privately-developed method of helping to bring about a negotiated settlement in lieu of corporate litigation. A typical mini-trial might entail a period of limited discovery after which attorneys present their best case before managers with authority to settle and, most often, a neutral advisor who may be a retired judge or other lawyer. The managers then enter settlement negotiations. They may call on the neutral advisor if they wish to obtain an opinion on how a court might decide the matter.
The Multi-Door Center (or Multi-Door Court House) is a proposal to offer a variety of dispute resolution services in one place with a single intake desk which would screen clients. Under one model, a screening clerk would refer cases for mediation, arbitration, fact-finding, ombudsman or adjudication.
Negotiate Investment Strategy is a mediation process which has been used on a limited basis to bring together federal, state and local officials and community members to resolve difference, disputes and problems related to the allocation and use of public resources.
Neighborhood Justice Center (NJC) was the title given to the three local dispute resolution centers (Atlanta, Kansas City and Los Angeles) funded by the Department of Justice in an experimental alternative dispute resolution program in the mid 1970s. That experiment contributed to the start of about 180 local centers now operating throughout the country under the sponsorship of local or state governments, bar associations and foundations. NJCs deal primarily with disputes between individuals in ongoing relationships (landlord-tenant, domestic, back-yard conflicts, etc.). Many draw their caseloads from referrals from police, local courts or prosecutors offices with which they are affiliated. The dispute resolution techniques most often offered by the centers are mediation and conciliation. Some centers employ med-arb. Referrals to other agencies are a common feature. Many centers earn some income providing training and technical assistance services. They are also known as Community Mediation Centers, Citizen Dispute Centers, etc. (See ABAs Dispute Resolution Program Directory)
An Ombudsman is a third party who receives and investigates complaints or grievances aimed at an institution by it constituents, clients or employees. The Ombudsman may take actions such as bringing an apparent injustice to the attention of high-level officials, advising the complainant of available options and resources, proposing a settlement of the dispute or proposing systemic changes in the institution. The Ombudsman is often employed in a staff position in the institution or by a branch or agency of government with responsibility for the institutions performance. Many newspapers and radio and television stations have initiated ombudsman-like services under such names as Action Line or Seven on Your Side.
Public Policy Dialogue and Negotiations is aimed at bringing together affected representatives of business, public interest groups and government to explore regulatory matters. The dialogue is intended to identify areas of agreement, narrow areas of disagreement and identify general areas and specific topics for negotiation. A facilitator guides the process.
Rent-a-Judge is the popular name given to a procedure, presently authorized by legislation in six states, in which the court, on stipulation of the parties, can refer a pending lawsuit to a private neutral party for trial with the same effect as though the case were tried in a courtroom before a judge. The verdict can be appealed through the regular court appellate system.
Paths to Justice: Major Public Policy Issues of Dispute Resolution. National Institute for Dispute Resolution, 1983