Glossary

Ad Hoc Arbitration - Arbitration without formalized rules and procedures and which is not conducted or administered by an institution or according to its rules.

Adhesion Contract - A standard form contract that must be accepted, as is, by all who engage in a specific activity or purchase a given product or service (Example: Insurance policy).

Adjudication - The process of hearing and deciding a case; any dispute resolution process in which a decision maker hears testimony and renders a decision is an adjudicatory process.

Adverse Precedent - Prior legal decision which cuts against your position.,

Alternative Dispute Resolution (ADR) - ADR is a widely used term referring to the entire range of out-of-court dispute resolution options.

Arbitration - A dispute resolution process in which the parties (and/or their attorneys) present their cases to a decision maker, called the arbitrator, who renders a decision in the case, which is not appealable.

Arbitrator - The neutral decision maker(s) in an arbitration.

Award - The decision of the arbitrator.

Bench Trial - A court trial presided over by a judge without a jury.

Binding - Legally enforceable; a binding decision in a case is a decision that the disputants must accept.

Common Law - the body of law developed in England from judicial decisions used as precedent, and not written in statutes. This body of law is the basis for the legal system in England and all the United States except Louisiana.

Conciliation - A process that facilitates dispute resolution, in which a neutral third party, called a conciliator, acts like a go-between, communicating each side’s position to the other, relaying settlement options, and sometimes offering non-binding advice in an effort to bring the sides closer to settlement. Process is similar to mediation.

Contracting State - A country which has agreed to be bound by a convention.

Convention - An international agreement drafted by a number of countries or an international organization (e.g., the United Nations).

Court–Annexed - A process of dispute resolution that is available through the court system.

Deposition - The process, carried out prior to a trial or arbitration hearing, through which disputants in a case or their attorneys jointly question a witness under oath, and record the witness’s testimony. The recorded testimony may be used later as evidence during the trial or arbitration hearing.

Discovery - The process, carried out prior to a trial or (sometimes) arbitration hearing, in which the disputants in a case exchange documents and other information that is pertinent to the case.

Early Neutral Evaluation (ENE) - A dispute resolution process designed to expedite court cases that are in the early pretrial stage. Attorneys and their clients who have filed a case in court meet with a private neutral, sometimes voluntarily and sometimes at the behest of the court. The neutral assesses the issues and positions of each side and offers an opinion of how the case will fare at trail, in an effort to encourage negotiation and settlement. Discovery management can also arise from this process.

Ex Parte (Latin) - Contact with the arbitrator or judge by one side in a dispute without the other side(s) being present or sending a written communication to the arbitrator or judge without sending a copy to all other parties).

ICSID Convention - An international multinational treaty providing a means for resolving disputes between a country and a foreign investor in that country.

Injunction - A remedy which requires a party to refrain from doing (or to do) a particular act or activity.

Joint Caucus - Meeting in mediation where all parties are present.

Judge Pro Tem - A temporary judge.

Legal Precedent - A court decision which establishes a principle applicable to future legal disputes.

Med-Arb - A dispute resolution procedure that combines aspects of both mediation and arbitration. By agreement of the parties, a neutral attempts to mediate a dispute, but if any or all issues cannot be resolved, the parties must proceed to binding arbitration (whether carried out by the same neutral or not).

Mediation - A voluntary non-binding dispute resolution process in which a neutral third party meets in joint and private caucuses with each party, as well as in joint session, and guides the parties to a mutually beneficially resolution by defusing hostilities, helping to narrow the issues in the case, and helping the parties gain realistic assessments of the merits of their cases.

Mediator - The neutral who carries out the dispute resolution process called mediation.

Minitrial - A dispute resolution process designed for business disputes, in which attorneys argue their clients’ cases before a panel of decision makers comprised of top executives from each of the disputing organizations. The panel hears arguments and then tries to negotiate a resolution, sometimes with the assistance of a third-party neutral.

Misdemeanor - A class of criminal offenses consisting of those offenses less serious than felonies and which are sanctioned by less severe penalties.

National - A citizen or legal resident of a country (state).

Neutral - Any independent, impartial individual who helps parties resolve disputes through any dispute resolution process.

New York Convention - Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This Convention provides a road map for a party who has won an arbitration in one country but needs to have the award enforced in another country.

Ombudsman - A neutral empowered to receive and investigate complaints about any institution, organization, or business. Sometimes he or she is also given the authority to facilitate solutions to problems or to recommend decisions on how problems should be solved. The impartiality of Ombudsmen is sometimes questioned because they are employees of the organization which has an interest in the dispute.

Panama Convention - Inter-American Convention on Commercial Arbitration. The road map for arbitration in the Western Hemisphere.

Partnering - A technique designed to prevent business disputes from occurring by establishing working relationships between or among business partners that are based on open communication, joint problem solving, teamwork, and shared risks and rewards. This process was first used in the construction industry, but could be applied to any long term project.

Private Judging - A procedure, allowed in some U.S. jurisdictions, where parties agree to hire a private judge, (usually retired judges or practicing attorneys) who hear the case and, render a decision which is appealable (sometimes called Rent-A-Judge).

Private Caucus - a private meeting between the mediator and one of the sides taking part in a mediation.

Provisional Remedy - A temporary order made by a judge or an arbitrator to preserve the status quo between disputing parties until final disposition of a matter can occur.

Remedy - The means employed to redress an injury.

Restitution - Giving back what was wrongly taken, or otherwise putting a party in the position it was in before being wronged.

Settlement Conference - A meeting with a judge or a lawyer or other experienced person who listens to the parties and attempts to facilitate settlement.

Specific Performance - A remedy for a breach of an agreement whereby the breaching party is ordered to perform the obligations contained within the agreement.

State - Sovereign political unit, such as a country or state of the United States.

Statute of Limitations - A law setting a certain time period, after which rights cannot be enforced by legal action.

Stipulation - Agreement among the parties to a dispute which is in writing or is recorded in the official records of a court or arbitration proceeding.

Treaty - Agreement between sovereign states.