LEADR - Association of Dispute Resolvers

Alternative Dispute Resolution (ADR) encompasses a range of processes through which parties may resolve disputes, often with the help of a specially trained neutral third party, without the need for a formal trial or hearing. The best known of these processes are mediation, arbitration and negotiation.

The word “alternative” derives from the notion that these processes are used as an alternative to litigation. While Alternative Dispute Resolution is still a frequently used term, it is increasingly recognised that litigation need not be the standard against which all other processes are considered to be “alternative." Instead, we are able to think in terms of "appropriate dispute resolution" – choosing the process most appropriate for resolving a particular dispute

LEADR recognises that effective dispute resolution is enabled by a process which best meets the needs of the parties. The basic explanations of various processes provided below are extracted in part from the NADRAC glossary of terms. ADR practitioners may modify a process to enable the best path for resolution. An experienced practitioner can assist the parties to understand the pro's and con's of each option, enabling appropriate selection.

ADR is an umbrella term for processes, other than judicial determination, in which an impartial person assists disputants to resolve issues between them. ADR is commonly used as an abbreviation for Alternative Dispute Resolution, and can mean Assisted or Appropriate Dispute Resolution. The term ADR also includes approaches that enable parties to prevent or manage their own disputes without outside assistance. See also PDR.

Adjudication is a process in which the parties present arguments and evidence to a dispute resolution practitioner (the adjudicator) who makes a determination which is enforceable by the authority of the adjudicator. The most common form of internally enforceable adjudication is determination by state authorities empowered to enforce decisions by law (for example, courts, tribunals) within the traditional judicial system. However, there are other internally enforceable adjudication processes (for example, internal disciplinary or grievance processes implemented by employers).

Arbitration is a process in which the parties present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination.

Combined or hybrid dispute resolution processes are processes in which the dispute resolution practitioner plays multiple roles. For example, in conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration).

Co-mediation is a process in which the parties with the assistance of two dispute resolution practitioners (the mediators), identify the disputed issues, develop options, consider alternatives and endeavour to reach agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.

Conciliation is a process in which the parties, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach agreement.

Note: there are wide variations in meanings for 'conciliation'. Conciliation may be used to refer to a range of processes for resolving complaints and disputes including:

Conference/Conferencing is a general term which refers to meetings in which the parties and/or their advocates and/or third parties discuss issues in dispute. Conferencing may have a variety of goals and may combine facilitative and advisory dispute resolution processes.

Conflict coaching “refers to a one-on-one voluntary and confidential process, in which a trained coach supports and assists people to reach their goals for improving the way they manage conflict or disputes. The process is essentially a conversation in which coachees choose the focus and coaches provide the structure that maintains it. Further, conflict coaches help people to explore different ways for reaching their objectives and to develop methods for preventing unnecessary conflict, resolving disputes and generally, enhancing their conflict management skills.” (from Model Standards of Ethical Conduct for Conflict Coaches drafted by CINERGY™ Coaching (November, 2004))

Counselling refers to a wide range of processes designed to assist people to solve personal and interpersonal issues and problems. Counselling has a specific meaning under the Family Law Act, where it is included as a Primary Dispute Resolution process (see PDR).

Dispute resolution refers to all processes that are used to resolve disputes, whether within or outside court proceedings. Dispute resolution processes may be facilitative, advisory or determinative (see descriptions elsewhere in this glossary). Dispute resolution processes other than judicial determination are often referred to as ADR.

Early neutral evaluation is a process in which the parties, at an early stage in attempting to resolve the dispute, present arguments and evidence to a dispute resolution practitioner. The practitioner makes a determination on the key issues in dispute, and most effective means of resolution, without determining the facts of the dispute.

Expert appraisal is a process in which a dispute resolution practitioner, chosen on the basis of his/her expert knowledge of the subject matter (the expert appraiser), investigates the dispute. The appraiser then provides advice on the facts, possible and desirable outcomes, and the means by which these may be achieved.

Expert determination is a process in which the parties present arguments and evidence to a dispute resolution practitioner, who is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute (the expert), who makes a determination.

Facilitation is a process in which the parties (usually a group), with the assistance of a dispute resolution practitioner (the facilitator), identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. Facilitation may then conclude, or it may continue to assist the parties to develop options, consider alternatives and endeavour to reach an agreement. The facilitator has no advisory or determinative role on the content of the matters discussed nor the outcome of the process, but may advise on or determine the process of facilitation.

Med-arb see Combined processes

Mediation is a process in which the parties, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. Another definition is 'a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator) negotiate in an endeavour to resolve their dispute'. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement.

LEADR supports a standardised model. LEADR refers matters to our accredited mediators who have demonstrated their competency and are bound by a code of ethics.

Mini-trial is a process in which the parties present arguments and evidence to a dispute resolution practitioner who provides advice about the facts of the dispute, possible, probable and desirable outcomes and the means whereby these may be achieved. See also case presentation.

Ombudsman (or Ombud) is a person who 'functions as a defender of the people in their dealings with government. ... In Australia, there is a Commonwealth Ombudsman as well as state and territory ombudsmen. ... In addition, a number of industry ombudsmen have been appointed, whose responsibility it is to protect citizens' interests in their dealings with a variety of service providers, especially in industries previously owned or regulated by governments, for example telecommunications, energy, banking and insurance'. (Go to the website of the Commonwealth Ombudsman >>.)

On-line dispute resolution, ODR, eADR, cyber-ADR are processes where a substantial part, or all, of the communication in the dispute resolution process takes place electronically, especially using specialist systems or via e-mail. See also automated dispute resolution processes.

PDR (Primary Dispute Resolution) is a term used in particular jurisdictions to describe dispute resolution processes which take place prior to, or instead of, determination by a court. The Family Law Act 1972 (Cth) 'encourages people to use primary dispute resolution mechanisms (such as counselling, mediation, arbitration or other means of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made' (section 14). The Federal Magistrates Act 1999 defines primary dispute resolution processes as 'procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth, and includes: (a) counselling; and (b) mediation; and (c) arbitration; and (d) neutral evaluation; and (e) case appraisal; and (f) conciliation' (section 21). See also ADR.

Private judging is a process in which the parties present arguments and evidence to a dispute resolution practitioner chosen on the basis of their experience as a member of the judiciary (the private judge) who makes a determination in accordance with their opinion as to what decision would be made if the matter was judicially determined.

Shuttle mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement without being brought together. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. The mediator may move between parties who are located in different rooms, or meet different parties at different times for all or part of the process.

Statutory conciliation takes place where the dispute in question has resulted in a complaint under a statute. In this case, the conciliator will actively encourage the parties to reach an agreement which accords with the advice of the statute.

Victim-offender mediation is a process in which the parties to a dispute arising from the committing by one of a crime against the other, with the assistance of a dispute resolution practitioner (the mediator), identify the issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process.