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ADR GLOSSARY

ARM - BEYOND TRADITIONAL ADR

TERM

DEFINITION

Alternative Dispute Resolution (ADR)

Commonly used to refer to a variety of alternatives to litigation, wherein a neutral party assists the disputing parties, includes a full range of dispute resolution processes between direct negotiation and litigation. 

Appellate Review

A neutral third party and former Appellate Justice at ARM will review your case to determine what could happen upon appeal. The information gained may help in drafting an appellate brief and preparing for oral arguments. It may also be a means to communicate with clients regarding the likelihood of success or failure on appeal. These consultations range from a request for an opinion on whether or not to appeal, to reviewing and commenting on the briefs to preparation for the oral argument, and conducting moot arguments.

Arbitration Agreement

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

Arbitration Hearing

Any proceeding in which disputes, claims or controversies are resolved, including:

  • In-Person/Oral Arbitration Hearing– any proceeding in which an Arbitrator entertains oral testimony or arguments and reviews documents and evidence to render an award or judgment. The hearing may be conducted in-person or via telephone.
  • Arbitration based on Written Submissions– any proceeding in which the Arbitrator reviews documents, evidence or property and bases his or her decision solely on the documentary evidence presented to him or her.

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.

Arbitrator

An individual, (typically a retired judge or attorney specialist) who conducts an Arbitration Hearing.

Award

Any 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.

Bracketed Arbitration

Commonly referred to as “high-low arbitration” is 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. 

Case Manager

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

Claim

Any claim seeking a remedy or relief submitted by one party against other parties including an initial claim, counter or cross claim.

Claimant

Any party initiating an Arbitration or Mediation and making a Claim under ARM Rules and Procedures.

Co-Mediation

A mediation that involves two or more mediators working together to resolve an often complex, multi-party dispute. 

Consumer

An individual, who purchases, seeks or acquires good or services for personal, family or household use.

Deposition

Testimony under oath, especially a statement by a witness that is written down or recorded for use in legal proceedings at a later time.

Dispute Review Board

A one or three person board of alternative dispute resolution professionals contractually appointed to resolve construction project disputes presented by the Owner, Contractor or other stakeholder.

Disclosures

Arbitrator disclosure is the arbitrator’s duty to disclose any relationship, experience and background information that may affect—or even appear to affect—the arbitrator’s ability to be impartial and the parties’ belief that the arbitrator will be able to render a fair decision.

Discovery

The compulsory disclosure of pertinent facts or documents to the opposing party in a legal proceeding.

Discovery Referee

Discovery Referees are most commonly used in complex matters where there is a disagreement between the parties relating to the scope and subject matter of discovery. These disputes can be very time-consuming and the delays and inefficiencies of having the court supervise this process can be avoided by the appointment of a discovery referee. The Discovery Referee must take on a “hands-on” approach and actively manage the case by coordinating discovery and resolving discovery disputes so settlement discussions can be productive.

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.

Early Neutral Evaluation

Early neutral evaluation is a confidential process that often occurs early in the pre-trial stage before the parties have invested significant time, resources and money. The parties will mutually agree to an ARM neutral with the requisite experience and background necessary to oversee the case. After listening to both sides about possible claims and supporting evidence, the neutral will assess the strengths and weaknesses of the case and provide assistance in finding common ground early on in the dispute. 

Facilitative Mediation

In this process, outcome control remains almost entirely in the hands of the parties and their counsel. A mediator enhances communication and helps to create options for resolution by ensuring that all relevant information is exchanged and heard by the parties. The mediator also helps to distinguish the parties’ issues from their interests. 

Focus Group

A proceeding in which attorneys will present some of the aspects of their case to a group of jurors.  This is far less formal than a mock trial and its more like brainstorming session in which jurors tell trial lawyers, often in real time, what they thought about a particular piece of evidence or a particular argument.

Fee Schedule

The then current Fee Schedule in effect at the time of the filing of a claim or initiating a mediation that spells out the costs for such proceeding.

Final Offer Arbitration

Also known as Baseball Arbitration. In this form of arbitration, the plaintiff and the defendant each separately submit a “final offer” to the arbitrator. The arbitrator chooses between the offer or the demand presented based upon the arguments heard. It is called baseball arbitration because it was long used to resolve disputes between baseball players and teams. 

Hybrid Processes

One of the main attractions to ADR is that the process can be shaped to meet the needs of its users. Hybrid ADR Processes are often better suited to the particular circumstances of each conflict and the interests of all parties involved. A hybrid dispute resolution process combines elements of two or more traditionally separate processes into one.

Interim Order

Any order providing temporary or preliminary relief pending a final Award.

Interrogatory

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

Med/Arb

Med/Arb is a combination of mediation and arbitration, in which the parties agree in advance that they will mediate but that, if the dispute is not resolved through mediation, they will proceed to binding arbitration.

Mediation

A non-binding settlement conference. Mediation sessions are only binding where an agreement is reached. Documentary evidence may be used by the parties and submitted to the Neutral to facilitate negotiations.

Mediator

An individual (typically a retired judge or attorney specialist) conducting a Mediation.

Mediation Agreement

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

Often the parties to a dispute require discretion to avoid public disclosure of sensitive information. A private trial offers all the advantages of courtroom litigation in a private and confidential setting. It most closely resembles an actual court trial in that judgment may be appealed for errors of law or as against the weight of the evidence. The main difference is that the parties mutually agree to an individual, usually a retired judge, to sit as a “judge pro tempore” and render a decision. Neutrals selected as private judges are appointed by a stipulation that is signed by the parties and filed with the court. The court then endorses the stipulation and the dispute is held in abeyance by the court until a decision is reached. The verdict is then entered in the court as if the trial were conducted there. Much like a normal trial, the decision of a private trial is subject to an appeal, which may also be conducted in a private setting.

Neutral

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

Order

Any order issued by an Arbitrator establishing specific rights and obligations of the parties.

Party

Any individual or entity who makes a claim or against whom a claim is made, including Claimants and Respondents.

Private Trial

A private trial conducted by a former judge and is most similar to a conventional trial in that judgment may be appealed for errors of law or as against the weight of the evidence. 

Reasoned Decision

An Award, which also includes the written findings of fact, conclusions of law or reasons for the Award.

Reply

A written response by the Respondent to an Arbitration Notice filed by the Claimant.

Representative

Any individual, including an attorney, who represents a party in an Arbitration or Mediation.

Respondent

Any party against whom a claim is made.

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.

Settlement Conference

A simple, evaluative mediation frequently used in uncomplicated cases, where the party representatives meet with a neutral who is typically a retired or former judge. 

 

Signature

A mark or symbol intended as an attestation, produced by reliable means, intended as a signature.

Special Master

A special master is appointed by a judge to oversee one or more aspects of litigation. They may be appointed pre-trial, during trial, or post-trial. The ultimate goal of the Special Master is to save time for judicial officers and reduce the litigation costs for the parties. They are usually tasked with overseeing discovery disputes, property distributions and allocations, as well as accounting, administering settlements and monitoring decrees. By virtue of their appointments, special masters often become temporary or quasi-judges, and in complex cases usually serve for periods ranging from many months to many years. Typically, the Special Master will recommend a solution to the Court. The Judge can accept the recommendation and make it a final order of the Court.

Witness

An individual who may or may not be a party, who will appear at an Arbitration 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.