Glossary

Adjudication

This term is most frequently encountered in the construction industry. Adjudication is a binding decision made by an appointed neutral, often a quantity surveyor, either by deciding on the basis of submitted documents, or as is increasingly the case, after a hearing. It is designed to provide a speedy, if not always elegant, resolution to enable work to continue on site without interruption. Either party may appeal the adjudicator's decision to court or arbitration, or indeed settle the dispute by mediation. The Housing, Grants, Regeneration Act 1996 has greatly increased the use of adjudication.
ADR
Alternative Dispute Resolution. Sometimes called Appropriate Dispute Resolution. This is a generic term referring to all methods of conflict resolution other than court, or some would say, arbitration.

Arbitration

An arbitrator is appointed by the parties to make a binding decision from which there are very limited grounds of appeal.

A long established alternative to litigation in court - indeed so established that many do not consider it to be a form of ADR at all, but that ADR is an alternative to it.

In many ways arbitration mimics the court process, in that documentation is voluminous and solicitors and barristers commonly appear at hearings, although the strict rules of evidence do not apply. It may be cheaper and quicker than court, though this is debatable.

Conciliation

A method that combines the best of mediation with, if necessary, a binding but not final decision. The fixed fee arrangement makes it a good alternative for smaller building disputes providing the issues are limited.

ENE

Early Neutral Evaluation. An expert is appointed to review the case then tell the parties what the likely outcome would be if they went to trial. ENE is not binding and enables the parties to negotiate a settlement having heard the evaluation.

The downside is that the outcome is out of the control of the parties, and a 'bad' result for one side leaves them in a relatively poor negotiating position.

Expert Determination

The parties appoint a neutral expert who makes a binding decision. Care must be taken to appoint a suitable expert as there is no appeal against the decision.
Litigation
Conducting a case through the courts. Litigation is started by the Claimant against the Defendant. A 'writ' traditionally started litigation but this term and many other pieces of jargon were disposed of by the Civil Procedure Rules ('CPR'), which controls the conduct of cases in both the High Court and the County Court.

Med-Arb
A process whereby a mediation can become an arbitration if no settlement is reached in the course of the mediation.

The 'threat' of an arbitration may encourage parties to reach their own settlement. Parties should consider carefully whether this option is suitable for them, and in particular query the extent to which they may be prepared to share confidences which may subsequently prejudice their position before the same individual deciding the case.

Consensus Mediation recommends that parties only consent to this process if the arbitrator is a different individual to the mediator - parties may prefer to try mediation first then reconsider their options if settlement is not reached.

Distinguish the mediator who is appointed arbitrator AFTER the parties have reached agreement in order to make the settlement an enforceable arbitrator's award.

Mediation
A voluntary, guided process where an impartial mediator helps the parties to negotiate. The process is not binding unless or until the parties reach agreement, after which the final agreement can be enforced as a contract. See the rest of this site for more information!

Mini-trial or Executive Tribunal
Senior representatives of each party, who have previously not been involved in the dispute, sit as a panel together with a neutral facilitator. They hear argument from all parties then discuss a settlement in the absence of the parties. Not widely used and suitable only where the senior management of all parties are genuinely distant from the dispute.

Online Dispute Resolution (ODR)
Dispute resolution using electronic media, usually without the parties meeting or speaking directly. Generally comes in two flavours: blind bidding, based on a mathematical process; and 'human touch' where a real person operates as a neutral. It is not true mediation, but offers many of its benefits.