“The starting point for a dynamical analysis of conflict is the recognition that conflicts are inherently dynamic; they escalate and de-escalate, change form, spread into new groups, and can be passed from generation to generation.” Peter T. Coleman
Glossary of terms
Adjudication (1) A process in which a neutral is required by contract or statute to make summary binding decisions on contractual disputes without following the procedures of litigation or arbitration (2) A broad term describing a category of dispute resolution processes in which a third party neutral makes some form of decision on the outcome of the case.
ADR (Alternative Dispute Resolution) A body of dispute resolution techniques which avoid the inflexibility of litigation and arbitration, and focus instead on enabling the parties to achieve a better or similar result, with the minimum of direct and indirect cost.
Arbitration A traditional, private dispute process in which the parties agree to be bound by the decision of a neutral third party, the arbitrator, whose award is usually legally enforceable as a court judgement.
Assisted Stakeholder Dialogue The use of practical and flexible processes to improve relationships between stakeholders in order to achieve clear consensus, clarify issues or resolve an existing conflict.
BATNA (Best Alternative To Negotiated Agreement) A measure developed by Roger Fisher and William Ury of the Harvard Negotiation Project which enables negotiating parties to evaluate their options. The BATNA is the best result that a party could hope for if it called off the negotiations.
Brokered Talks Talks are often deadlocked because of the number of parties involved and the myriad of sensitive issues that run between some or all of them. Brokered talks can act as an impartial, creative force to kick start 'talks about talks', providing momentum towards optimal results.
Caucus A private, confidential meeting between the mediator and each party separately. Caucus meetings are often used to examine the important issues and needs of each party, encourage openness about weaknesses as well as strengths and discuss options for settlement.
Co-mediation A process using two or more mediators in the same mediation.
Conciliation Can be used to describe a process where the neutral takes a relatively activist role, putting forward terms of settlement or an opinion on the case. However, there is no international consistency over which process, mediation or conciliation, is the more activist and mediation is increasingly being adopted as the generic term for third-party facilitation in commercial disputes.
ENE (Early Neutral Evaluation) A preliminary assessment of facts, evidence or legal merits. This intake process is designed to help parties avoid further unnecessary stages in litigation or, at the very least, serve as a basis for further and fuller negotiations.
Evaluative Mediation An approach to mediation where the neutral takes a relatively active or interventionist role, making suggestions or putting forward views about the merits of the case or particular issues between parties.
Facilitative Mediation An approach to mediation where the neutral aids or assists the parties' own efforts to formulate a settlement. The mediator is in charge of the process but the parties are in charge of the content. This approach is sometimes referred to as 'interest-based' mediation.
Independent Chairing An independent chairman will manage the process rather than dictate content. Independent chairing can be an end in itself, or it may lead to a more structured approach through formally brokered talks or another form of effective dispute resolution.
Independent interventions Independent interventions are the involvement of an impartial third party to facilitate negotiations, discussions, consensus-building, problem-solving and relationship-building or to manage existing or potential difficulties in a wide variety of situations.
Interdisciplinarity involves the combining of two or more academic disciplines into one activity (e.g. a research project). It is about creating something new by crossing boundaries, and thinking across them.
Joint Sessions Phases in a mediation when the negotiating parties are brought together. The Opening Joint Session takes the form of an introduction by the mediator and brief presentations by each party of their case at a round table meeting.
Litigation A method of dispute settlement involving an impartial third party hearing arguments on both sides and issuing a judgment. Litigation is an adversarial and usually public process that tends to create a winner and loser.
Med-Arb A process in which parties contract to give the mediator power to 'convert' to being an arbitrator and make a legally binding award, in the event that mediated negotiations do not lead to a settlement.
Mediation A flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.
Mediation Agreement A document setting down the conditions under which the mediation will take place, including confidentiality, authority to settle and privilege.
Mediator A neutral person who helps disputing parties try to arrive at an agreed resolution of their dispute. Mediation cannot take place without a mediator, whose presence creates a new dynamic that is absent when parties undertake direct negotiation.
Neutral A third party who is detached from the issue in dispute and can manage the process of achieving settlement in a way that is not possible for parties, lawyers and managers who are more directly involved. See also Mediator.
Ombudsman An independent, impartial adjudicator of complaints about maladministration in government departments and particular services in the public and private sectors.
Opening Statements Oral presentations which are given after the Mediator's address and allow each party the chance to present an uninterrupted narrative of their case with the full force of feeling and certainty.
Project Mediation A dispute prevention mechanism where a mediator is appointed at the outset of a long project or major business relationship, to act as the point of contact when communication problems are anticipated or arise.
Reality Testing A tool used by mediators that involves displaying to a party the picture they have drawn of their position, and encouraging them to test what they see. Whilst use of the tool requires particular sensitivity, it can be vital for helping parties to adjust their position and become more flexible.
Reframing A tool used by mediators that involves changing words, the complexion on words and circumstances and the order in which ideas are presented in order to allow a situation to be viewed more positively.
Rights-Based Mediation An approach to mediation where the neutral takes a relatively proactive role, ensuring that settlements reflect statutory rights and legal entitlements.
Settlement Agreement A brief document designed to set forth in clear and understandable language the salient terms of a negotiated agreement. See also Heads of Agreement.
Transformative Mediation An approach that is similar to facilitative mediation but involves the mediator and parties determining the process to be used.