ACIArb (Intro to ADR) key terms

The range of processes for resolving disputes outside ordinary court litigation, including negotiation, mediation, conciliation, arbitration, adjudication and expert determination; the term is descriptive, not a single procedure with fixed rules.

A way of arranging dispute processes from purely party-controlled negotiation, through facilitated processes such as mediation, to third-party-decided processes such as arbitration and litigation, according to who controls the outcome and how formal the process is.

The principle that disputing parties may choose their process, decision-maker, applicable rules and procedure; it underpins arbitration and consensual ADR, though mandatory law and public policy set limits.

A label for settlement communications made on the basis that they cannot be put before a court or tribunal as evidence of admissions; it encourages candid negotiation but is subject to exceptions such as unambiguous impropriety.

A negotiation approach in which each side opens with an extreme demand and makes concessions from stated positions; it can secure outcomes but tends to strain relationships and overlook underlying interests.

An approach that identifies each party's underlying needs and concerns rather than stated demands, then seeks options that satisfy those interests; associated with the Harvard principled negotiation method and with integrative bargaining.

Best Alternative To a Negotiated Agreement: the course of action a party would take, and the value it expects from it, if no deal is reached. It sets the realistic floor for what that party should accept.

Worst Alternative To a Negotiated Agreement: the least favourable realistic outcome a party would face if negotiations failed. Comparing BATNA and WATNA helps a party assess risk before accepting or rejecting a proposal.

The least favourable deal a negotiator is willing to accept, derived from the value of their best alternative; the point beyond which walking away is preferable to agreeing.

Zone of Possible Agreement: the range between the parties' reservation points within which a mutually acceptable settlement exists. If the ranges do not overlap, no negotiated deal is possible on those terms.

Negotiation over how to divide a fixed pool of value, often called a zero-sum or win-lose approach; claiming tactics dominate and the relationship is secondary to the outcome.

Negotiation aimed at expanding the pool of value by trading across issues on which the parties differ in priority, producing joint gains rather than merely dividing a fixed amount.

A confidential, voluntary process in which a neutral third party without power to decide helps the parties reach their own settlement; the mediator structures communication and reality-tests positions but cannot impose an outcome.

A mediation style in which the mediator manages process and communication, helping parties understand interests and generate options, while leaving the substance of any settlement entirely to the parties.

A mediation style in which the mediator expresses views on the merits, likely court outcomes or settlement ranges, often to move parties off unrealistic positions; it raises neutrality and consent concerns for some practitioners.

A model focused on empowering each party and recognising the other's perspective, valuing improved interaction and understanding as ends in themselves rather than measuring success only by settlement.

A private session between the mediator and one party during a joint mediation, used to explore interests, test proposals or defuse tension; what is learned is confidential unless the party agrees otherwise.

A mediator technique of probing the practicality and consequences of a party's position, such as the cost and risk of litigation, without dictating the outcome; more assertive in evaluative models.

The document recording the terms on which parties resolve a dispute; if reached in mediation it is a contract, and it may later be entered as a consent award or court order to make it enforceable.

A consensual process in which a neutral third party assists settlement, typically with a more active, advisory role than a mediator; usage varies by jurisdiction and institution, so the applicable rules must be checked.

A process in which an experienced neutral hears a summary of each case and gives a non-binding assessment of merits, strengths and likely outcome, to inform settlement or case management.

A consensual process in which parties refer a dispute to a private tribunal that decides it after an adversarial procedure; the resulting award is final and generally enforceable internationally.

The parties' contract to submit present or future disputes to arbitration, contained in a clause or separate agreement; it must be in writing and is the foundation of jurisdiction and enforcement.

The doctrine that an arbitration clause is treated as an agreement independent of the main contract, so that the clause may survive termination or invalidity of the contract containing it.

The principle that an arbitral tribunal may rule on its own jurisdiction, including objections to the existence or validity of the arbitration agreement, subject to later court review at the appropriate stage.

The panel of one or more arbitrators appointed to decide the dispute; its composition, appointment method and challenge procedure are set by the parties' agreement, institutional rules and applicable law.

The legal place of the arbitration, which determines the law governing the procedure and the courts supervising the process; it is distinct from the physical venue where hearings are held.

The tribunal's final written decision on the dispute; it is binding and, subject to limited grounds for challenge, enforceable in the seat and, under the New York Convention, in other contracting states.

An award recording terms on which the parties have settled, issued when the parties request it and the tribunal agrees; it carries the enforceability of an award while reflecting the parties' own agreement.

A process, common in construction, in which a third party gives a binding decision within a short period on a dispute arising during a project; the decision is usually binding pending final resolution by arbitration or litigation.

Appointment of a technical expert to decide a specific issue, whether a valuation, quality question or contract interpretation; the expert decides as an expert rather than as an arbitrator, so the process is generally less formal and less easily enforced internationally.

A standing or ad hoc panel established under a contract, typically in long-term projects, to assist the parties and issue recommendations or decisions on disputes as they arise, usually before arbitration.

Use of digital platforms and communication tools to conduct all or part of a dispute process, including negotiation, mediation or arbitration, often for high-volume low-value claims and cross-border consumer disputes.

The 1958 treaty under which contracting states recognise and enforce foreign arbitral awards and arbitration agreements, subject to limited grounds for refusal such as public policy or lack of a valid agreement.

A model statute on international commercial arbitration, adopted in many states with variations, covering the arbitration agreement, tribunal, procedure and setting aside of awards; it is not itself binding law.

Procedural rules published by a body such as an arbitration or mediation centre, which govern appointment, conduct and administration of proceedings when the parties incorporate them by agreement.

Arbitration conducted without an administering institution, with the parties and tribunal managing the process; it relies on a carefully drafted agreement and often on a designated appointing authority.

The obligation to keep information about a dispute or process private; its scope depends on the applicable agreement, institutional rules or law, and it is not absolute, since courts may require disclosure.

Two related duties for neutrals: impartiality concerns absence of bias or preference for a party, while independence concerns absence of relationships or interests linking the neutral to a party; both must be disclosed and maintained.

The obligation of a neutral to reveal circumstances that may give rise to justifiable doubts about impartiality or independence, before appointment and throughout the process; failure can ground a challenge.

The fundamental norms of a legal system; it is a limited ground for refusing enforcement of an award or settlement, and courts interpret it narrowly so that the finality of awards is preserved.