This paper aims to promote discussion about the terms used within the discipline of ADR. It canvasses arguments for and against common terms, identifies current issues about the use of particular ADR terms and suggests possible approaches for the future.
The National Alternative Dispute Resolution Advisory Council (NADRAC) hopes that this paper will help to build consistency in the quality of ADR practice, while supporting innovation, flexibility and creativity in ADR. The paper aims to achieve a balance between consistency and diversity, and asks open-ended questions about the use of ADR terms.
In 1997 NADRAC produced a set of definitions for ADR processes that have been used by many organisations and practitioners. While this paper raises questions about these definitions, it continues to use them as a starting point for discussion. The appendix provides a glossary of the terms used in this and previous NADRAC publications.
There are potential weaknesses with these definitions. The meanings of many ADR terms are disputed. Innovative ADR processes do not always fit into existing definitions. The general public may not understand the complex language associated with some ADR terms.
NADRAC wishes to find out how to improve definitions or descriptions for ADR and welcomes the views and suggestions of diverse groups on the questions raised in this paper and on ADR terminology in general.
NADRAC’s role is to provide policy advice on ADR to the Commonwealth Attorney-General.
ADR terminology has been central to NADRAC’s consideration of each of the issues it has examined. NADRAC has provided advice on ADR standards, ADR in the Federal Magistrates Service, criteria for referral to ADR, diversity in ADR, ADR in small business, the use of technology in ADR and ADR research. NADRAC is currently examining statutory provisions for ADR, ADR referral practices, Indigenous use of ADR, strategies to promote the effective use of ADR and ADR data collection. NADRAC is also taking part in a review by the Attorney-General's Department of the primary dispute resolution provisions in the Family Law Act 1975 (Cth).
A clearer understanding of how ADR terms are used, and how people feel they should be used, will assist NADRAC’s work in these areas. NADRAC also hopes that such an understanding will be of benefit to others who have an interest in ADR.
Of particular interest to NADRAC is whether ADR processes or practices should be ‘defined’ or ‘described’. Throughout this paper both possibilities are mentioned. (The distinction between ‘definitions’ and ‘descriptions' is explained in Section 4.1.)
Should ADR terms take the form of ‘definitions’ or ‘descriptions’?
1.3 NADRAC’s Definitions Paper
NADRAC examined ADR definitions shortly after its establishment. In 1997 it released a paper entitled Alternative Dispute Resolution Definitions (the ‘Definitions Paper’). Council members felt that, if they were to provide effective and consistent advice to the Attorney-General, they needed a common understanding of the ADR processes under consideration. Members anticipated that this work might also be of more general use. NADRAC did not seek to impose definitions of ADR processes on any other organisation and recognised the value of flexibility and diversity in the practice of dispute resolution.
Since the release of the Definitions Paper, rapid growth in the use and diversity of ADR has led to further controversies over terms.
In February 2000 NADRAC decided to review the Definitions Paper. This review evaluated the usage of the definitions and the need for any changes to the paper. Also during 2000 NADRAC undertook extensive consultation about its discussion paper, The Development of Standards for ADR (March 2000) (the ‘Standards Discussion Paper’). Many responses to the discussion paper raised the issue of ADR definitions and reinforced the need to review the original paper. NADRAC’s final report, A Framework for ADR Standards (April 2001) (the ‘Standards Report’) contains a summary of these responses.
NADRAC’s review showed widespread adoption of, and support for, its definitions. However, responses also suggested that:
The paper should be more user-friendly and more widely distributed.
Conversely, the paper needed greater detail for education, training and case management purposes.
It would be inappropriate for organisations bound by specific legislation to use the NADRAC definitions.
While the categories of ADR processes used in the Definitions Paper (facilitative, advisory and determinative) were useful, some organisations would prefer to see a distinction only between determinative and non-determinative processes.
Non-binding determinative processes could be more accurately described as advisory processes.
Processes used by many organisations do not fit neatly into one category or the other.
Similar ADR processes should be included under a single heading.
NADRAC decided that a revised paper on ADR terms needed to explain the purpose of definitions or descriptions, and describe, and give possible definitions of, combined ADR processes.
As it would be difficult to produce a short and user-friendly document that addressed the complex policy and practice issues associated with ADR terms, NADRAC decided to both:
produce a short brochure on ADR terms, and
conduct continuing consultation on the broader issues associated with ADR terminology.
In March 2002 NADRAC released a brochure entitled What is ADR?. The brochure simplified the earlier paper and made several substantive changes that took account of the concerns raised.
The brochure preserved the distinctions among facilitative, advisory and determinative processes, and added a new category of combined processes. The brochure did not define specific ADR processes. Instead, it provided examples of each category. The brochure recognised that ADR service providers need to provide more detailed information to those using ADR services.
Commentators in Australia and overseas have for many years raised other issues about the use of ADR terms. This current discussion paper summarises these issues and provides a basis for further consultation.
1.4 Diverse needs
Many groups have an interest in developing ADR terms. These groups include the users of ADR services; ADR practitioners and service providers; researchers; academics and students; lawyers; courts and tribunals; government, community and private agencies; standards setting bodies; consumer bodies; policy makers and legislators.
The issues canvassed in this paper may be of most interest to technical audiences such as practitioners, courts, academics and legislators, who might benefit from comprehensive analysis and discussion of terminology.
Terms for ADR, however, should ultimately serve the interests of those using ADR services. Most service users have little awareness of ADR generally, let alone the fine distinctions among particular ADR processes such as facilitation, mediation, conciliation and conciliation counselling.1 The terms used by ADR practitioners and academics may not always make sense to people of diverse languages and cultures2, including Indigenous groups3. The complex language used in many ADR publications, including some of NADRAC’s own papers and reports, requires a high level of comprehension.
The needs of different audiences suggest three options:
Develop different sets of terms for different audiences.
Educate users of ADR services about the meaning of technical terms.
Develop a common and simple language for ADR, which is useful for most or all audiences.
How should the needs of diverse groups be taken into account in developing terminology for ADR?