Glossary of dispute resolution terms

About the glossary

This glossary has mainly been sourced from The Australian National Alternative Dispute Resolution Advisory Council (NADRAC) Glossary of Dispute Resolution Terms then adapted for the New Zealand context.

It is not intended to be a prescriptive guide to how dispute resolution terms should be used in New Zealand but to help the consistent use and understanding of dispute resolution terms.

There are some overlaps and distinctions in the meaning of certain terms – these are dealt with by cross references.

A

Adjudication is a process in which the parties present arguments and evidence to a dispute resolution practitioner (the adjudicator) who makes a determination. The most common form of adjudication is determination by authorities empowered to enforce decisions by law (for example; courts, tribunals) within the traditional judicial system. Adjudication also refers to dispute resolution outside the traditional judicial system, in which a dispute resolution practitioner is empowered by contract or statute to make binding decisions on disputes.

Adjudicator means a person who presides over hearings and makes decisions in relation to formal disputes. The term ‘adjudicator’ can also be limited to an individual appointed to determine a dispute that has been referred to adjudication. Adjudicators can be appointed by statutes (see, for example, the Construction Contracts Act 2002). Depending on the empowering statute, the adjudicator may have a specific title, for example ‘Authority’ under the Employment Relations Act 2000.

Adversarial processes are focused on establishing legal rights and are a mode of dispute resolution in which the competing claims of the parties are presented - often by representatives (whether legal or otherwise) - to an independent decision-maker. The decision-maker will normally leave it to the parties to present their respective cases with little intervention. Compare an investigative or inquisitorial process where the decision-maker can call witnesses and take a more active role in questioning witnesses. See also adjudication, arbitration and inquisitorial process.

Advisory dispute resolution processes are processes in which a dispute resolution practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law, and in some cases, possible or desirable outcomes and how these may be achieved. Advisory processes include expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation.
Advocate, where referring to an individual participating in a dispute resolution process, means a person representing or acting on behalf of a party to a dispute. An advocate may or may not be legally qualified. See the definition of support person, for a different role.

Advocate, where referring to an individual participating in a dispute resolution process, means a person representing or acting on behalf of a party to a dispute. An advocate may or may not be legally qualified. See the definition of support person, for a different role.

Advocate organisations, such as Health and Disability Advocates under the Health and Disability Commissioner Act 1994, have a broader role in dispute resolution processes. The functions of advocate organisations include providing advocacy services as well as serving as a hub for advice, information and education and receiving complaints.

Arbitration is a process in which the parties to a dispute agree to present arguments and evidence to one or more dispute resolution practitioners (the arbitral tribunal) who then issue an award; deciding the matter in dispute. Arbitrations are governed by the Arbitration Act 1996. Arbitration can include:

• Binding arbitration, a private adversarial process in which the parties choose an impartial person or persons to hear their dispute and to make a binding decision.
• Non-binding arbitration is the same process as binding arbitration except that the arbitrator’s decision is advisory only (but may form the basis for settlement of the dispute). Note that non-binding arbitration is not available under the Arbitration Act 1996.
• Fast track arbitration is used early in the process, with the parties to a dispute presenting arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination on the most important and most immediate issues in dispute.
• Final-offer arbitration, each party submits a proposal to resolve the dispute and at the end of the hearing the arbitrator chooses one or other of the proposals without amendment and typically without giving a reason. Final-offer arbitration is sometimes called baseball arbitration.
• Desk arbitration or arbitration on the papers is an arbitration process where the parties submit their arguments in written form only and a decision is made based on the papers.

Certain phrases have specific meanings when used in the context of arbitration:

• Arbitral Tribunal is the term given to the arbitrator or arbitrators appointed.
• Arbitration agreement means an agreement by the parties to submit to arbitration, all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
• Arbitrator is a member of the Arbitral Tribunal to whom a dispute is referred to be resolved by arbitration.
• Award is the decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award.

Arbitrable disputes are disputes that may be resolved by arbitration. An arbitrable dispute must involve an issue that could be heard in a civil court.

C

Case appraisal is a process in which a dispute resolution practitioner (the case appraiser) investigates the dispute and provides advice on possible and desirable outcomes and the means by which these might be achieved. Case appraisal can also involve an outside expert acting for one side and sharing their opinion with the other side.

Case presentation (or mini-trial) is a process in which the parties present their evidence and arguments to a dispute resolution practitioner who provides advice on the facts of the dispute and, in some cases, on possible and desirable outcomes and the means whereby these may be achieved. This is effectively a trial run without the parties being bound by the outcome. See also mini-trial.

Caucusing is when the parties meet separately with the dispute resolution practitioner during a dispute resolution process. Note that caucusing could be seen as a breach of natural justice if the dispute resolution practitioner has decision-making authority. See also, for contrast, plenary session.

Combined or hybrid dispute resolution processes are processes in which the dispute resolution practitioner applies a range of approaches and plays multiple roles. For example, the dispute resolution practitioner may facilitate discussions between the parties, 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, if unsuccessful, then a different one (arbitration). Combined or hybrid processes include fast track mediation. Fast track mediation is an early assistance process in the Employment Relations Act 2000 where parties decide before the mediation event that if they have not reached a settlement of their dispute within a specified time the mediator may make a decision as to the outcome. This process is effectively a form of med/arb. In contrast, FastTrack Resolution in the tenancy area is a quick way to confirm agreements reached between landlords and tenants.

Community mediation is mediation within the community, sometimes using volunteer mediators. Disputes that have no official resolution mechanism, or one that is not accessible due to cost or other factors, can be resolved this way. Community mediation may include disputes involving community groups, small businesses, neighbours, families, and possibly some justice issues.

Complaint is an expression of dissatisfaction. Complaints are often made about an organisation’s products, service, staff, or the handling of a complaint, where a response or resolution is explicitly or implicitly required.

Co-mediation is mediation conducted by two or more mediators. The respective mediators may bring different skills to the process, for example, technical or subject matter expertise, the status of a revered elder, or dispute resolution expertise. See mediation.

Conciliation is a process with wide variations in meaning, and may be used to refer to a range of processes used to resolve complaints and disputes including:

• Informal discussions held independently between the parties and an external agency in an endeavour to avoid, resolve or manage a dispute.
• Combined processes in which, for example, an impartial party facilitates discussion between the parties, provides advice on the substance of the dispute, makes proposals for settlement or actively contributes to the terms of any agreement.

The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution but not usually 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 an agreement.

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. It applies to both plenary and caucusing sessions.

Conflict coaching is defined as a set of skills and strategies used to support peoples’ ability to engage in, manage, or productively resolve conflict. In this process, the conflict coach works one-on-one with someone experiencing conflict with another person. Conflict coaching enables the coachee to talk about the conflict with a neutral third party (the conflict coach), consider options for managing the conflict, and design an approach to discuss the conflict with the other person. Conflict coaching can be used as a stand-alone process, or can be practiced with each of the parties in separate meetings during mediation. ^[1]

Consensus building is the process of building common ground.

Counselling refers to a wide range of processes designed to assist people to solve personal and interpersonal issues and problems.

D

Dispute is a disagreement.

Dispute resolution refers to all processes that are used to resolve disputes, whether within or outside court proceedings. Dispute resolution includes approaches that prevent disputes or enable parties to manage and resolve their disputes without intervention. Dispute resolution processes may be facilitative, evaluative, advisory or determinative (see descriptions under Mediation and Med/arb).

Dispute resolution practitioner is a person who conducts themselves impartially to assist those in dispute to resolve the issues between them. Practitioners may work for government or in the private sector, either as part of a dispute resolution organisation or as an individual directly engaged by parties.

E

Early neutral evaluation is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner at an early stage. That practitioner makes an assessment of the key issues in dispute and the most effective means of resolving the dispute without determining the facts of the dispute. The practitioner may express a view on the likely outcome if the dispute proceeds to court or arbitration.

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

Expert determination is a process, in contrast to arbitration, in which the parties to a dispute 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) and who makes a binding or non-binding determination, typically without a hearing or needing to comply with the rules imposed on arbitrators (e.g. natural justice).

Expert mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner chosen on the basis of his or her expert knowledge of the subject matter of the dispute (the expert mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.

F

Facilitation is a process in which the parties (usually a group), with the assistance of a dispute resolution practitioner (the facilitator), agree outcomes, identify tasks to be accomplished, problems to be solved or disputed issues to be resolved.

Note: Facilitation is also a term used in the Employment Relations Act 2000 to describe a process whereby the Employment Relations Authority provides assistance to parties experiencing difficulties in collective bargaining negotiations. The term is also used in the Resource Management Act 1991.

Facilitator is a person who facilitates discussion between members of a group or groups of people with a focus on assisting them to identify issues and work on options for resolution, drawing on the skills and knowledge of the parties.

Fact finding is a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the investigator) who makes a determination as to the facts of the dispute, but who does not make any findings or recommendations as to outcomes for resolution.

• In neutral fact-finding, the parties appoint a neutral third party to perform the function, and typically determine in advance whether the results of the fact-finding will be binding or advisory only.
• With expert fact-finding, the parties privately employ neutrals to render expert opinions that are binding or non-binding on technical, scientific or legal questions.
• In joint fact-finding, the parties designate representatives to work together to develop responses to factual questions.

See also investigation.

Family Dispute Resolution (FDR) Providers are providers of Family Dispute Resolution that have been approved under section 6 of the Family Dispute Resolution Act 2013.

G

Good faith is an honest intention to act without taking an unfair advantage over another person. It incorporates mutual obligations of trust and confidence; being active and constructive as well as being responsive and communicative with the intent to establish and maintain a positive relationship; not doing anything, either directly or indirectly, with the intention to mislead or deceive. Under the Employment Relations Act 2000, good faith includes the requirement to provide information within a party’s possession relevant to the matters in issue and giving an opportunity to comment; provided that information may not be disclosed for good reason such as statutory requirements, the privacy of natural persons or protection of a party’s commercial position.

H

Hybrid Dispute Resolution Services- see Mediation - combined dispute resolution services.

I

Indirect or third-party negotiation is a process in which the parties to a dispute use representatives (for example, lawyers or agents) to identify issues to be negotiated, develop options, consider alternatives and endeavour to negotiate an agreement. The representatives act on behalf of the participants, and may have authority to reach agreement. In some cases the process may involve the assistance of a dispute resolution practitioner (the facilitator) but the facilitator has no advisory or determinative role on the content of the matters discussed or on the outcome of the process, but may advise on or determine the process of facilitation.

Industry dispute resolution: Industry-specific dispute resolution schemes deal with complaints and disputes between consumers (including some small business consumers) and a particular industry. Although a range exists, schemes are usually funded by the industry but governed by an equal number of industry and consumer representatives. Some schemes are required to meet standards established in legislation. If the industry member and consumer do not reach agreement, most schemes have the power to make a determination. The determination is binding on the industry member, but not the consumer who can choose to accept or reject the determination. Depending on the scheme, the power to make the determination lies with an Ombudsman, Commissioner, panel or referee.

Inquisitorial process is an investigative process where the decision maker can carry out his or her own investigations, consult experts, call witnesses and take an active role in questioning witnesses. See, for contrast, adversarial process.

Investigation is a process in which a dispute resolution practitioner (the investigator) investigates the dispute and provides advice (but not a determination) on the facts of the dispute. See also fact finding.

J

Judicial dispute resolution (or judicial ADR) is a term used to describe a range of dispute resolution processes which are conducted by judges or magistrates.

Judicial settlement conferences are a form of judicial dispute resolution involving a meeting of parties to proceedings, convened by a judge, designed to explore the possibility of a resolution of the disputed matter without a trial.

M

Med-arb is a process in which a mediator makes a decision if the parties cannot agree. See Combined or hybrid dispute resolution processes.

• Determinative mediation is a form of med/arb – in cases where the parties (often with legislative authority) confer a power of decision or recommendation on the mediator, the mediator can determine or recommend on the substantive issues rather than focus on the process. This mode of mediation departs from the usual situation where the parties determine the outcome.

Mediation is a process where the parties, with the assistance of external help, create a safe environment where they can address their issues and resolve them if they wish. Mediation is based on the principles of voluntariness, confidentiality, impartiality, and self-empowerment.

Mediation can be one of many modes, of which the main ones are:

• Facilitative – where the mediator assists the parties to a dispute to, for example, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. This is the most common form of mediation in regulated schemes.
• Advisory – where the mediator considers and appraises the dispute and provides advice as to the facts, the law, and, in some cases, possible or desirable outcomes and how these may be achieved.
• Transformative – a process that empowers parties and fosters recognition of each others’ needs.
• Narrative – where the focus is on how the parties make sense of the world, in which the parties tell their own stories and the mediator explores the common ground between the stories allowing alternative stories to emerge that make trust and cooperation more likely.
• Evaluative - where a mediator, as well as facilitating negotiations between the parties, also evaluates the merits of the dispute and provides suggestions as to its resolution. Most mediators do this in private sessions. See also combined processes.
• Combined or hybrid processes are processes in which the mediator plays multiple roles.
• Tradition-based mediation - the primary aim of tradition-based mediation is not so much justice between the parties as equanimity, stability and harmony within the community, industry or group. Confidentiality is not such a concern in community-based process where the group has a vested interest in the outcome. Mediators are often sought out for their wisdom, status and persuasive presence along with their technical expertise. Tradition-based mediators generate an open-ended dialogue among participants, rich in ritual, focussing on restoration of relationships within the group, reconciliation, the interests and values of the community and, frequently, public symbolism. ^[2] Mediation can be conducted on the marae or at another venue while honouring kawa (protocol), for example mihi whakatau (formal welcome).
• Distance mediation is mediation conducted across a physical or geographical distance. The mediation can be conducted asynchronously (that is, not occurring at the same time - by first communicating with one party and then the other) or synchronously (for example, via video conference).
• Shuttle mediation is an asynchronous option (i.e. not occurring at the same time) within the process of mediation where the parties remain in separate rooms and the mediator facilitates the process by acting as a conduit for the exchange of information and conveying offers and counter offers.

Mediator is a dispute resolution practitioner who assists the parties toward their own resolution in a mediation, but does not decide the outcome (unless the process is determinative, see determinative under Med/arb, above).

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

Multi-party mediation is a mediation process which involves several parties or groups of parties.

N

Negotiation is the process of parties getting together with a view to reconciling differences and establishing areas of agreement, settlement or compromise.

O

Ombudsman is a person who is appointed under the Ombudsmen Act 1975, to investigate complaints about the administrative conduct of state sector agencies, including in relation to official information requests. 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.

On-line dispute resolution includes all processes where a substantial part, or all, of the communication in the dispute resolution process takes place electronically, for example via e-mail. Note that in on-line dispute resolution the parts of the process can be separated in time, (i.e. asynchronous) as opposed to occurring simultaneously, as happens where the parties are in the same room.

P

Parties are persons or bodies who are in a dispute.

Plenary session is where the parties come together to exchange views and discuss options for resolution. A plenary session may begin with each party listening to the other. See, for contrast, caucusing process.

Prehearing conference is any meeting that takes place before the start of a court, tribunal or other authority hearing.

R

Reconciliation is a process in which parties to a dispute attempt to work out their differences in order to restore the relationship. Reconciliation is particularly suited to situations where the parties will remain in an ongoing relationship (for example in family disputes or employment). A dispute resolution practitioner may be involved.

Referrers (or referring agencies) are individuals and agencies that suggest, encourage, recommend or direct the use of dispute resolution (or other) services. Examples are courts, tribunals, legal practitioners, community agencies, professionals, friends and relatives.

Restorative terms:

• Restorative conferencing, Diversionary, victim-offender, community accountability, restorative and family group conferencing are processes which aim to steer an offender away from the formal criminal justice (or disciplinary) system and refer them to a meeting (conference) with the victim, others affected by the offence, family members and/or other support people. The practitioner who facilitates the conference may be part of the criminal justice system (for example, a police or corrections officer) or an independent person. See also restorative justice.
• Restorative practice involves building social cohesiveness through participatory learning and decision-making. It aims to improve behaviour, strengthen society, restore relations and repair harm and empower people. The range of processes includes conferencing and community justice panels. Restorative practice and restorative justice use the same principles of participation, empathy and respectful dialogue to build healthy relationships between people so that wrong-doing and harm are less likely to re-occur.
• Restorative justice is a way of responding to crime that invites victims and offenders and their supporters to come together, with trained facilitators, to talk about what has happened, how they have been affected, and to resolve together how the harm can be repaired.
• Restorative justice facilitator is a person who can enable the parties to talk to each other in a restorative way.
• Restorative justice conference is a meeting between the victim and the offender and other affected people as part of a restorative justice process.

S

Senior executive appraisal is a form of case appraisal presentation or mini-trial where the facts of a case are presented to senior executives or clients of the organisations in dispute.

Service users (or consumers) are those who seek, use or receive dispute resolution (or other) services. They may not necessarily be involved in a dispute, have engaged a service provider or have participated directly in dispute resolution processes, but may seek information or other assistance from the dispute resolution service provider.

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. See also conciliation.

Support person is a person who attends a dispute resolution process with a party. While support people do not normally speak on behalf of that party, they may be accorded speaking rights in some circumstances. A support person may have a particular role to play in caucus processes. See, for contrast, advocate.

T

Technical advisor – a statute or scheme may have a role for expert advisors to inform the decision-maker and/or the parties, for example, regarding engineering or other technical advice, or on cultural matters.

Tikanga and dispute resolution includes forms of dispute resolution that are based on traditional Māori ideas of justice as tangata whenua and the customary practices that implemented them. These ideas and practices differ considerably depending on the region (mana whenua) and tribal groupings (iwi) and sub groupings (hapū and whānau) in which they manifested. An awareness of the underpinning concepts of whakamā, whanaungatanga, mana, tapu, utu and kaitiakitanga is required. The dispute resolution practitioner must be culturally confident and competent and able to manage large numbers of people

Note | that there is a difference between forms of dispute resolution based on tikanga, such as marae-based dispute resolution within Māori communities, and forms of dispute resolution incorporating the practices of tikanga, such as the family dispute resolution hui administered by Fairway under the Family Dispute Resolution Act 2013.

Footnotes

[1] Definition courtesy of Armadei, Robin (2010) Conflict Coaching: A powerful ADR tool, Common Ground Mediation Centre, www.commongroundmediation.com(external link), accessed 12 August 2015.

[2] Alexander, Nadja (2011) "The Mediation Meta-Model - the realities of mediation practice," ADR Bulletin: Vol. 12: No. 6, Article 5.