Enforcement in New England
Glossary of ADR Terms
Alternative Dispute Resolution (ADR): A broad range of processes designed to help people resolve disputes by means other than litigation in the courts. ADR processes include mediation, facilitation, arbitration, case evaluation, neutral fact-finding, and consensus building processes
Arbitration (Binding and Non-Binding): A form of ADR in which an impartial individual (or panel of individuals) is authorized to review evidence, hear the arguments of the disputants and render a decision.
Case Evaluation/Early Neutral Evaluation: A process in which the parties summarize their case to an impartial "evaluator" who gives an opinion regarding the probable outcome if the case were litigated and renders a non-binding award as to the settlement value of the case. Case evaluation is used to encourage settlement and is particularly useful in resolving issues as to damages, when liability is not hotly contested.
Consensus Building: A term for a variety of processes based on collaboration in which diverse and often competing interest groups strive to reach agreement, often assisted by a neutral facilitator. The goal of consensus building processes is to develop policies with wide support and a reduced likelihood for divisive community battles or legal challenges.
Convening: The use of a neutral to help parties determine whether and how to pursue negotiations; the convener may help the parties identify and clarify issues, identify necessary participants, determine whether some type of neutral assistance would be useful, and if so, select a mutually acceptable neutral.
Facilitation: The use of a neutral to help a group of people conduct productive discussions about complex or potentially controversial issues. The focus of the facilitator's role is to help people communicate effectively with each other.
Fact-Finding: A process in which a neutral, technical expert, or panel investigates and analyzes the facts and issues in a dispute and often issues a report to the parties and/or a court. The results of fact-finding are usually not binding, unless the parties have agreed otherwise, but may be admissible in court. Fact-finding is often a component of other ADR processes such as mediation and can take a variety of forms, including "neutral," "expert," or "joint fact-finding." In joint fact-finding, the parties designate representatives to work together to develop mutually acceptable responses to factual questions.
Mediation: A voluntary process in which a neutral third party assists the parties to a dispute in working towards a mutually acceptable agreement. A mediator has no authority to make decisions, but assists the disputants in identifying their interests, developing and evaluating options, and, where possible, negotiating an agreement. Mediation styles differ widely with some mediators making minimal procedural suggestions and intervening only to overcome and impasse, and others forge the details of an agreement.
Mini Trial: Two-step process to facilitate settlement in which (a) the parties' attorneys present a summary of the evidence and arguments they expect to offer at trial to a neutral in the presence of individuals with decision-making authority for each party, and (b) the individuals with decision-making authority meet with or without the neutral to discuss settlement of the case.
Summary Jury Trial: A non-binding determination administered by the court in which (a) the parties' attorneys present a summary of the evidence and arguments they expect to offer at trial to a six-person jury chosen from the court's jury pool, (b) the jury deliberates and returns a non-binding decision on the issues in dispute, (c) the attorneys may discuss with the jurors their reaction to the evidence and reasons for the verdict, and (d) the presiding neutral may be able to conduct a mediation with the parties.