ADR Core Module key terms

The collective name for processes that resolve disputes outside ordinary litigation, such as negotiation, mediation, conciliation, adjudication, expert determination and arbitration, usually chosen for speed, confidentiality, cost control or party control.

The principle that disputing parties may freely shape their own process and outcome, choosing the neutral, the procedure, the seat, the governing law and the remedies, subject only to mandatory legal limits.

A rule shielding settlement communications from later use in litigation or arbitration, so that offers and concessions made to end a dispute cannot be deployed against the party that made them.

A widely adopted treaty under which member states recognise and enforce foreign arbitral awards and honour written arbitration agreements, giving cross-border awards much of their practical force.

A template statute on international commercial arbitration that many states have adopted in whole or in part, harmonising rules on the agreement, tribunal, procedure, awards and setting aside.

The doctrine that an arbitration clause is treated as an agreement separate from the main contract, so it can survive the invalidity, termination or breach of that contract.

The power of an arbitral tribunal to rule on its own jurisdiction, including objections to the existence or validity of the arbitration agreement, usually subject to later court review.

The best alternative to a negotiated agreement: what a party would realistically achieve if talks failed. It sets the walk-away point and anchors any assessment of whether a proposed deal is worthwhile.

The zone of possible agreement: the range between each side's reservation point within which a deal is better for both than no deal. If the ranges do not overlap, settlement is unlikely.

A party's least acceptable outcome, the limit beyond which it prefers no agreement. It is derived from that party's BATNA and should be set before entering talks.

A negotiation approach that focuses on the parties' underlying needs and concerns rather than their stated positions, seeking options that meet shared interests and expand the pie before dividing it.

A competitive approach treating negotiation as a fixed pie to be divided, in which each gain by one side is a loss to the other. It is typical of single-issue money disputes.

A collaborative approach that creates value by trading across issues on which the parties differ in priority, so both can gain rather than merely split a fixed sum.

The tendency for an early figure or proposal to shape subsequent expectations and concessions. Skilled negotiators set a defensible anchor or prepare to counter an aggressive one.

Negotiating by asserting and defending fixed demands, often beginning high or low and making incremental concessions, rather than exploring the needs that lie behind those demands.

A confidential, voluntary process in which a neutral third party helps disputing parties communicate, identify interests and reach their own settlement, without power to impose an outcome.

The impartial neutral who facilitates mediation, managing the process and communication while leaving decisions to the parties. The role differs from an arbitrator, who decides the dispute.

A private session between the mediator and one side alone, used to explore interests, test offers and share information the party may not wish to disclose jointly, subject to agreed confidentiality.

A mediation technique in which the neutral moves between separately held parties, carrying proposals and information, often used where the parties refuse to meet face to face.

A written agreement by which parties submit present or future disputes to arbitration. It may be a clause in a contract or a separate submission and is usually required in writing.

The panel of one or more arbitrators appointed to decide the dispute. Its composition, method of appointment and any challenge procedure are governed by the agreement and applicable rules.

The neutral decision-maker in arbitration, chosen by or for the parties, who hears the case and issues a binding award. Arbitrators must be independent and impartial.

The legal place of the arbitration, which determines the procedural law and supervising courts, and often the nationality of the award. It is distinct from the venue of hearings.

Arbitration administered by a body that supplies rules and case management, such as appointing arbitrators and handling fees, in contrast to ad hoc arbitration arranged by the parties themselves.

Arbitration conducted without an administering institution, where the parties and tribunal arrange procedure, appointments and fees, often using rules such as the UNCITRAL Arbitration Rules.

The tribunal's final decision on the dispute, generally binding and enforceable, and in most modern laws required to be in writing and reasoned unless the parties agree otherwise.

An award recording a settlement reached by the parties and, on request, issued by the tribunal in that form, giving the settlement the enforceability of an award.

The procedure by which a court at the seat annuls an award on limited statutory grounds, such as lack of jurisdiction, procedural unfairness or conflict with public policy. It is not an appeal on the merits.

The process by which a court gives legal effect to an award made elsewhere or compels compliance with it, typically under the New York Convention or regional treaty rules.

A process in which a neutral assists the parties towards settlement, often more actively than a mediator by proposing solutions, but still without power to impose a binding decision.

A process in which a neutral decides a dispute on a provisional or interim basis, commonly used in construction, with the decision binding unless and until revised by arbitration or litigation.

A process in which the parties appoint a person with technical expertise to decide a defined issue, such as valuation or quality, and whose decision is usually final and binding on that issue.

The use of digital platforms to conduct dispute resolution, including online negotiation, mediation and arbitration, often suited to low-value, high-volume or cross-border consumer claims.

The requirement that a neutral be free from bias or favour towards any party, both in fact and as it reasonably appears, and disclose anything that might cast doubt on that.

The absence of financial, professional or personal ties between the neutral and a party or its counsel that could influence the outcome. It is assessed objectively and must be disclosed.

Any interest or relationship that could compromise, or appear to compromise, a neutral's impartiality or independence, triggering a duty to disclose and possibly a challenge.

The duty to keep dispute information private, applying to the neutral, the parties and their advisers, subject to exceptions such as enforcement or overriding legal requirements.

A contract clause setting out successive steps, such as negotiation, then mediation, then arbitration, before a dispute may proceed to a binding decision, with each stage often time-limited.

A contract recording the terms on which parties resolve a dispute, which may be enforceable as a contract or, in some processes, converted into a consent award or court order.