Mediation, Arbitration, and Some Common Terms used in ADR

Disputes are an inescapable part of contemporary life, encompassing workplace disagreements, family issues, and contractual conflicts. Traditionally, resolving these conflicts through litigation is often both financially and emotionally draining. In such situations, Alternative Dispute Resolution (ADR) provides a valuable and flexible avenue for reaching amicable resolutions. This blog post will delve into key ADR terms and definitions to help you better understand these indispensable dispute-resolution methods.

Alternative Dispute Resolution (ADR): A process mutually agreed upon by disputing parties, involving the assistance of a neutral party or non-adversarial methods, aimed at achieving an agreement and averting litigation.

Arbitration: A private process led by one or more third parties who determine the resolution of a dispute. The outcome can be either "binding" or "non-binding/advisory." (Source: Jim Stutzman)

• High-Low Arbitration: This is a type of arbitration where parties establish a binding range within which the arbitrator's decision must fall.

• Med-Arb: Med-Arb combines mediation and arbitration. It starts with a mediator facilitating negotiations and, if an impasse is reached, transitioning into an arbitrator to make a final decision. This approach raises significant ethical considerations that should be thoroughly researched. (Source: Richard Fullerton)

Conciliation: Conciliation is challenging to define precisely. In a broad sense, it refers to less structured or informal processes aimed at collaboration. In some cases, a third party plays an authoritative role in proposing the terms of the agreement. (Source: Jim Stutzman)

Conflict Coaching: A one-on-one communication process between a coach and a client, enhancing the client's understanding of conflict-related matters, interaction strategies, and skills. (Source: Jones, T.S., Brinkert)

Early Neutral Evaluation: A process where a neutral party is presented with a summary of facts and legal aspects by all involved parties, and they provide a non-binding evaluation of the positions and the probable trial outcome. (Source: VA Code § 8.01 576.4)

Facilitation: The process or skill set through which a third party assists disputants in moving towards resolving a conflict. Facilitation often includes helping set meeting ground rules, facilitating communication, analyzing the situation, and maintaining focus on mutual goals. (Source: Dan Snodderly)

Judicial Settlement Conference: An informal process where a court-affiliated person with mediation and settlement conference skills actively guides parties towards mutually satisfactory resolutions. While the facilitator does not decide the case, their input influences settlement negotiations. (Source: https://www.vacourts.gov/courtadmin/aoc/djs/programs/jsc/jsc_brochure.html)

Mediation: A facilitated process by a neutral third party in which disputants discuss their concerns and explore potential solutions to their differences. Mediation is non-binding and emphasizes self-determination and impartiality. (Source: Alice M. Price Laflin)

• Evaluative Mediation: The mediator assesses the case and shares information to guide parties toward a settlement. Decisions often hinge on legal analysis and may involve compromise. (Source: Katie Shonk)

• Facilitative Mediation: The mediator guides discussions without offering opinions on the case's merits or potential legal outcomes, allowing parties to assess their positions independently. (Source: Virginia required form for Agreement to Mediate)

• Transformative Mediation: The mediator seeks to balance parties' negotiation power while fostering conflict resolution opportunities, focusing on enhancing parties' competence and connection. (Source: Bush and Folger)

Negotiation: A process involving communication and bargaining between parties to reach a mutually acceptable agreement on shared concerns, typically involving compromise and concessions. (Source: Dan Snodderly)

• Interest-Based Negotiation: This approach, attributed to William Ury, focuses on understanding parties' interests beyond their stated positions, enabling mutually beneficial solutions by separating people from the problem and relying on objective criteria.

• Narrative Mediation: A newer mediation style where the mediator works to construct a new narrative that supports conflict resolution by examining and aligning the parties' stories. (Source: John Winslade)

• Structured Negotiation: A process that occurs without filing a lawsuit, avoiding the complexities and expenses of litigation, involving negotiation between parties. (Source: Lainey Feingold)

Ombudsperson: An individual associated with an organization or business who assists in resolving conflicts or concerns by gathering information, conducting research, and investigating. Various ombuds roles and responsibilities exist, including organizational, classical, and advocate ombuds.

Restorative Justice: An alternative approach to addressing criminal wrongdoing, aiming to address the harm caused and meet unmet needs rather than simply punishing offenders.

Collaborative Law: A voluntary dispute resolution process where parties settle without litigation, contingent on signing a collaborative participation agreement, disclosing relevant information, and employing good faith negotiations with legal representation.

A few years ago, I presented a workshop on how "Alternative Dispute Resolution is not Alternative Anymore!" for mediators in Virginia and West Virginia. 

Alternative dispute resolution refers to any time of resolution of a legal matter outside of litigation in the adversarial system. These options will grow as we explore the potential for more profound and sustainable resolution to conflicts. To learn more about alternative dispute resolution, schedule a free meeting with me today!