Glossary of terms
CEDR Accredited Mediator Refers to those mediators who have reached the required standard for passing CEDR's five-day mediator training course.
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.
Assistant Mediator A newly trained mediator attending a mediation session to gain experience of the process and act as a companion to the lead mediator. The specific role of the Assistant is determined by the lead mediator but often includes note-taking, observing, drafting, co-mediating and running messages.
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 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.
Executive Tribunal A process, sometimes called 'Mini-Trial', in which parties make formal but abbreviated presentations of their best legal case to a panel of senior executives from each party, usually with a mediator or expert as neutral chairperson. Following the presentations, the executives meet (with or without the mediator or expert) to negotiate a settlement on the basis of what they have heard.
Expert Determination A process in which an independent third party, acting as an expert rather than judge or arbitrator, is appointed to decide the dispute. There is no right of appeal, thereby giving parties finality.
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.
Heads of Agreement The section of the settlement agreement in which the principal terms of the agreement are set forth.
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 Developed by CEDR, 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.
Independent Review An impartial investigator to set up terms of reference for an inquiry into facts, a problem or a difficult set of circumstances and to make recommendations or to report findings according to the terms of reference agreed.
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.
Judicial Appraisal A procedure, sometimes known as 'Rent-a-judge' where the parties appoint a judge to receive written representations from each side and make an appraisal of the likely result if the case goes to court. The parties must agree the form and extent of submissions and whether the appraisal is to be binding or not.
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.
Mini-Trial See Executive Tribunal.
Neutral Fact Finding Similar to Expert Determination but restricted to the clarification of particular issues and non-binding in that the neutral does not normally make an award.
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.
Pathfinder Mediation The use of an appointed mediator to help parties clarify the real differences or information requirements they need to address in a dispute before the stage of formal settlement discussions.
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.
Registered CEDR Mediators Refers to mediators who have not only been Accredited by CEDR but have gained some experience and undertaken some further structured training, and who are keeping their mediation practice 'fresh' through regular review and practical experience. Registered Mediators follow the CEDR CPD programme. They must apply to renew their Registration every two years, when they must submit a record of their mediation practice over the previous two-year period (in the form of a completed log book).
Rent-a-judge See Judicial Appraisal.
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.
Summary Jury Trial A non-binding, abbreviated mock trial using a panel of actual jurors. Rules of evidence and testimony are usually modified to expedite the process, and negotiations or a mediation generally follow the trial.
Transformative Mediation An approach that is similar to facilitative mediation but involves the mediator and parties determining the process to be used.