ACIArb (Intro to ADR) flashcards
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32 cards. Read the term and the definition here. The deck at the top of this page is optional.
- BATNA
- Best Alternative To a Negotiated Agreement; the standard against which any proposed deal should be measured. A party should reject offers worse than its BATNA.
- ZOPA
- Zone of Possible Agreement; the range between the parties' reservation points where a deal is possible. If no overlap exists, negotiation may fail.
- Integrative bargaining
- A negotiation approach that seeks to create value by addressing underlying interests and trading issues of differing priority, rather than merely dividing fixed resources.
- Principled negotiation
- Fisher and Ury's method: separate people from problem, focus on interests not positions, invent options for mutual gain, and use objective criteria.
- Mediation caucus
- A private meeting between the mediator and one party during mediation. What is said may be confidential unless the party authorises disclosure to others.
- Facilitative mediation
- A mediation model where the mediator facilitates communication and negotiation without evaluating the merits or suggesting outcomes; party self-determination is central.
- Evaluative mediation
- A mediation model where the mediator assesses the strengths and weaknesses of each party's case and may suggest settlement terms, often used in commercial disputes.
- Transformative mediation
- A mediation model focused on empowerment and recognition of the parties, aiming to transform their relationship and conflict interaction rather than solely reach settlement.
- Consent award
- An arbitral award made on the parties' agreed terms, often used to give a mediated settlement the status of an enforceable arbitral award.
- Separability doctrine
- The principle that an arbitration clause is separable from the main contract; the clause may survive termination or invalidity of the main contract.
- Competence-competence
- The tribunal's power to rule on its own jurisdiction, including objections to the existence or validity of the arbitration agreement, subject to later court review.
- Seat of arbitration
- The legal place of arbitration that determines the procedural law and supervising courts; it is distinct from the venue where hearings occur.
- New York Convention
- 1958 treaty requiring contracting states to recognise and enforce foreign arbitral awards and written arbitration agreements, subject to limited exceptions.
- Model Law
- UNCITRAL Model Law on International Commercial Arbitration (1985, amended 2006); a template for national arbitration statutes covering agreement, procedure, award and enforcement.
- Singapore Convention
- 2018 UN Convention on International Settlement Agreements Resulting from Mediation; provides a framework for cross-border enforcement of mediated settlements.
- Emergency arbitrator
- A neutral appointed under institutional rules to grant urgent interim relief before the arbitral tribunal is constituted; the award is typically interim and binding.
- Adjudication
- A statutory or contractual process where an adjudicator gives a temporarily binding decision within a short period, enforceable pending final arbitration or litigation.
- Expert determination
- A process where an expert decides a defined technical or valuation issue; the decision is binding if the parties agree, with limited grounds for challenge.
- Dispute board
- A panel appointed under a contract to resolve disputes during a project, issuing recommendations or decisions that may be binding and enforceable as contract terms.
- Online Dispute Resolution
- Use of technology to facilitate negotiation, mediation, or arbitration remotely; raises issues of identity, confidentiality, data protection and cross-border enforcement.
- Early neutral evaluation
- A non-binding process where a neutral evaluates the merits or quantum of a dispute early on to encourage settlement and narrow issues.
- Conciliation
- A process where a third party assists parties to settle and may propose terms; it is generally confidential and non-binding unless a settlement is reached.
- Without prejudice
- A rule protecting settlement communications from being used in later proceedings; exceptions apply for fraud, threats, and certain statutory contexts.
- Impartiality
- The absence of bias or prejudice by a neutral; required alongside independence, which concerns relationships with parties or counsel.
- Independence
- The absence of connections or relationships between a neutral and the parties, counsel, or subject matter that could influence the neutral's decision.
- Disclosure duty
- The obligation of arbitrators and mediators to reveal circumstances likely to create justifiable doubts about their independence or impartiality, on a continuing basis.
- Setting aside
- A court challenge to an arbitral award on limited grounds such as lack of jurisdiction, due process breach, or public policy, under Model Law Article 34.
- Arbitrability
- The legal principle determining which disputes may be resolved by arbitration; certain matters (e.g. criminal, family, some competition) may be reserved to courts.
- Tiered dispute clause
- A contractual clause requiring parties to attempt negotiation or mediation before arbitration; enforceability of the obligation varies by jurisdiction.
- ADR spectrum
- A continuum of dispute resolution processes ordered by third-party control and binding effect, from negotiation to litigation.
- Med-Arb
- A hybrid process where the same neutral first mediates and then arbitrates if no settlement is reached; raises confidentiality and due process concerns.
- IBA Guidelines
- International Bar Association instruments on conflicts of interest, evidence taking, and party representation, widely used in international arbitration.