Mediation Terminology – Things You Must Know.

Posted on 03/05/2016 · Posted in Mediation

In order to understand what mediation is and how the process works, it’s important to be familiar with the terminology involved. Below is a glossary of key terms and acronyms regularly referred to in mediation:

Active Listening – A form of listening that focuses completely on what the other person is saying, including body language reflective of listening which also conveys understanding of the content of what is being said and emotion it is being delivered in.

ADR – Alternative Dispute Resolution. Refers to any kind of dispute resolution that avoids litigation.

Adjudication – Adjudication is a compulsory method for resolving disputes in the construction industry, introduced in the UK in 1996 by the Housing Grants, Construction and Regeneration Act (the Construction Act). Learn more about Adjudication.

Arbitration – A form of alternative dispute resolution that involves the appointment of an independent third party who will bring an end to the parties’ dispute by making a binding decision as to its correct outcome based on the evidence brought before him or her. Learn more about Arbitration.

BATNA – Best Alternative To Negotiated Agreement. A measure developed by Roger Fisher and William Ury of the Harvard Negotiation Project. It enables negotiating parties to evaluate their options and is the best result that a party could hope for if it called off the negotiations.

Caucus – A private and separate meeting between the mediator and each disputing party. Caucuses are most frequently employed when communication has completely broken down between two parties.

CEDR Accredited Mediator – Individuals who are now classed as accredited mediators, having reached the required standard for passing CEDR’s five-day mediator training course.

Cognitive bias – Subconscious biases often unbeknown to us that limit our world view based on things such as culture, age and gender.

Co-mediation – When two or more mediators are used in the same mediation process.

Confidentiality – All parties, mediators and observers taking part in a mediation will agree up front that no information revealed in the mediation process will be shared or disclosed outside the mediation.

Expert Determination – The use of an independent expert to decide the dispute outcome.

Evaluative Mediation – A mediation approach where the mediator has a much greater part to play in determining the outcome of the mediation compared to facilitative mediation, which allows the disputing parties a greater sense of urgency over the method with which the dispute is resolved. This mediation approach is based on the mediator evaluating the legal position of each party.

Facilitative Mediation – A mediation approach where the mediator assists the two parties in coming to a resolution based on the information available. The mediator leads the process, but the parties are responsible for agreeing the outcome with the mediator’s help.

Impartiality – An essential attitude for a mediator, they will not favour one party or the other’s perspective and must treat both as equal.

Impasse – Parties within a mediation that are unwilling or unable to reach compromise.

Joint Sessions – Part of the mediation process where parties are brought together. The Opening Joint Session consists of an introduction by the mediator and each party presenting their case.

Litigation – A type of dispute resolution involving an impartial third party hearing both sides’ argument and issuing a judgement.

Med-Arb – When mediation does not lead to settlement, a process in which parties agree to give the mediator arbitration power to make a legally binding decision.

Mediation – A structured, confidential process in which a neutral third party assists disputing parties in working towards negotiating a settlement. The third party’s decision, unlike arbitration and adjudication, is not legally binding.

Mediator – A trained professional who remains neutral to assist participants in a mediation to reach a mutually agreeable consensus.

Opening Statement – Oral presentations which take place after the mediator’s opening address that allow each party to present their case.

Reality testing – A tool used by mediators to help parties test what they see by outlining to them the picture they have drawn of their position. This can help participants stay flexible and open-minded in the process. Reality testing is used when mediators perceive that parties are showing evidence of cognitive biases.

Reframing – A tool used by mediators to allow parties to take a more objective view of the events that gave rise to their dispute. Reframing requires that the mediator listens to both side’s versions of events before the mediator relays what he or she has understood back to the parties. This active re-telling creates a distance between the parties and the events, allowing all those involved to re-evaluate where they may have been at fault.

Resolution – An agreement or partial agreement; this may be underpinned by a settlement agreement document.

Settlement Agreement – A brief document setting out the key terms of the negotiated agreement or resolution.

Transformative Mediation – A mediation approach based on the concept that two parties’ relationship may be transformed during the mediation process, empowering parties to come to their own resolution through their own chosen mediation structure.

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Expert Evidence is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.