National Alternative Dispute Resolution Advisory Council adr terminology: a discussion paper



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    1. Glossary


This glossary aims to aid discussion about the meaning of specific ADR terms mentioned in this and previous NADRAC papers. It is not a prescriptive set of definitions and will be reviewed in the light of responses to the paper.

As far as possible, the glossary uses descriptions or definitions contained in previous NADRAC publications. It uses and cites other sources where appropriate.


            1. What alternative definitions or descriptions should be used for terms used in ADR (listed in the Glossary)?
            2. What terms are used in ADR, other than those described in the Glossary?

Adjudication is a process in which the parties present arguments and evidence to a neutral third party (the adjudicator) who makes a determination which is enforceable by the authority of the adjudicator. The most common form of internally enforceable adjudication is determination by state authorities empowered to enforce decisions by law (for example, courts, tribunals) within the traditional judicial system. However, there are also other internally enforceable adjudication processes (for example, internal disciplinary or grievance processes implemented by employers). (NADRAC’s Definitions Paper).

ADR refers to processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. See also PDR. (NADRAC’s brochure: What is ADR?)

ADR organisations are formally constituted entities, whether government, statutory, or non-government, which are involved in defined activities. These activities may comprise service provision, training, accreditation and professional membership services associated with ADR service providers. (NADRAC’s Standards Report)

ADR practitioners are the individuals directly involved in the delivery of ADR services. They may work privately or through engagement by an ADR organisation. A sole practitioner is a sole trader or other individual operating alone and directly engaged by clients. (NADRAC’s Standards Report)

ADR programmes are planned sets of activities in which ADR is used to meet defined objectives. A program could involve a number of service providers under a government funding arrangement or could represent a series of projects and activities undertaken by a particular service provider. (NADRAC’s Standards Report)

ADR schemes are systematic and planned arrangements for the provision of ADR. (NADRAC’s Standards Report)

ADR service providers are the entities responsible for the actual delivery of ADR services. The term service provider includes both organisations and sole practitioners, but does not include organisations that have no service provision function. (NADRAC’s Standards Report)

ADR services are the particular forms of assistance provided by ADR service providers. (NADRAC’s Standards Report)

Advisory ADR processes are processes in which an ADR practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law and, in some cases, possible or desirable outcomes, and how these may be achieved. Advisory processes include expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation. (NADRAC’s brochure: What is ADR?)

Arbitration is a process in which the parties to a dispute present arguments and evidence to a neutral third party (the arbitrator) who makes a determination. (NADRAC’s Definitions Paper)

Automated ADR processes are processes conducted through a computer program or other artificial intelligence, and do not involve a ‘human’ third party. See also blind bidding and  on-line ADR.

Automated negotiation (or blind-bidding) is ‘a form of computer assisted negotiation in which no third party (other than computer software) is needed. The two parties agree in advance to be bound by any settlement reached, on the understanding that once blind offers are within a designated range … they will be resolved by splitting the difference. The software keeps offers confidential unless and until they come within this range, at which point a binding settlement is reached’. See also automated ADR processes. (Consumers International (2000) Disputes in Cyberspace)

Case appraisal is a process in which a third party (the case appraiser) investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved. (NADRAC’s Definitions Paper)

Case presentation (or Mini-trial) is a process in which the parties present their evidence and arguments to a third party who provides advice on the facts of the dispute, and, in some cases, on possible and desirable outcomes and the means whereby these may be achieved. See also mini-trial. (NADRAC’s Definitions Paper)

Clients are individuals or organisations that engage ADR service providers in a professional capacity. A client may not necessarily be a party to a dispute, but may engage an ADR service provider to assist the resolution of a dispute between others. (NADRAC’s Standards Report)

Combined or hybrid ADR processes are processes in which the ADR practitioner plays multiple roles. For example, in conciliation and in conferencing, the ADR practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, such as med-arb, the practitioner first uses one process (mediation) and then a different one (arbitration). (NADRAC’s brochure: What is ADR?)

Co-mediation is a process in which the parties to a dispute, with the assistance of two neutral third parties (the mediators), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. (NADRAC’s Definitions Paper)

Community mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), chosen from a panel representative of the community in general, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. (NADRAC’s Definitions Paper)

Conciliation counselling is a term used previously to describe some of the processes used by counsellors in the Family Court of Australia to assist parties to settle disputes concerning children. The Court now uses the term mediation to describe these processes.

Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement. (NADRAC’s Definitions Paper)

Conference/Conferencing is a general term, which refers to meetings in which the parties and/or their advocates and/or third parties discuss issues in dispute. Conferencing may have a variety of goals and may combine facilitative and advisory ADR processes.

Consensus building is a process where parties to a dispute, with the assistance of a facilitator, identify the facts and stakeholders, settle on the issues for discussion and consider options. This allows parties to build rapport, through discussions that assists in developing better communication and relationships.

Counselling refers to a wide range of processes designed to assist people to solve personal and interpersonal issues and problems. Counselling has a specific meaning under the Family Law Act, where it is included as a Primary Dispute Resolution process (see PDR).

Decision-making for One (DMO) is a process where the ADR practitioner assists ‘one party who wishes to explore options and the other party declines to attend’. (Submission by Relationships Australia in response to NADRAC’s Standards Discussion Paper)

Determinative ADR processes are process in which an ADR practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Examples of determinative ADR processes are arbitration, expert determination and private judging. (NADRAC’s brochure: What is ADR?)

Determinative case appraisal is a process in which the parties to a dispute present arguments and evidence to a neutral third party (the appraiser) who makes a determination as to the most effective means whereby the dispute may be resolved, without making any determination as to the facts of the dispute. (NADRAC’s Definitions Paper)

Dispute counselling is a process in which a third party (the dispute counsellor) investigates the dispute and provides the parties or a party to the dispute with advice on the issues which should be considered, possible and desirable outcomes and the means whereby these may be achieved. (NADRAC’s Definitions Paper)

Diversionary, victim-offender, community accountability and family group conferencing are processes which aim to steer an offender away from the formal criminal justice (or disciplinary) system and refer him/her to a meeting (conference) with the victim, others affected by the offence, family members and/or other support people. A third party facilitates the conference. The third party may be part of the criminal justice system (for example, a police or corrections officer) or an independent practitioner.

Early neutral evaluation is a process in which the parties to a dispute present, at an early stage in attempting to resolve the dispute, arguments and evidence to a neutral third party. That third party makes a determination on the key issues in dispute, and most effective means of resolving the dispute without determining the facts of the dispute. (NADRAC’s Definitions Paper)

Education for self-advocacy is a process in which a party to a dispute is provided with information, knowledge or skills, which assist them to negotiate directly with the other, party or parties. See also dispute counselling and decision-making for one.

Evaluative mediation is a term used to describe processes where a mediator, as well as facilitating negotiations between the parties, also evaluates the merits of the dispute and provides suggestions as to its resolution. (See also combined processes). Note: evaluative mediation may be seen as a contradiction in terms since it is inconsistent with the definition of mediation provided in this glossary.

Expert appraisal is a process in which a third party, chosen on the basis of their expert knowledge of the subject matter (the expert appraiser), investigates the dispute. The appraiser then provides advice on the facts and possible and desirable outcomes and the means whereby these may be achieved. (NADRAC’s Definitions Paper)

Expert determination is a process in which the parties to a dispute present arguments and evidence to a neutral third party, who is chosen on the basis of their specialist qualification or experience in the subject matter of the dispute (the expert) and who makes a determination. (NADRAC’s Definitions Paper)

Expert mediation is a process in which the parties to a dispute, with the assistance of a neutral third party chosen on the basis of his or her expert knowledge of the subject matter of the dispute (the expert mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. (NADRAC’s Definitions Paper)

Facilitated negotiation is a process in which the parties to a dispute, who have identified the issues to be negotiated, utilise the assistance of a neutral third party (the facilitator), to negotiate the outcome. The facilitator has no advisory or determinative role on the content of the matters discussed or the outcome of the process, but may advise on or determine the process of facilitation. (NADRAC’s Definitions Paper)

Facilitation is a process in which the parties (usually a group), with the assistance of a neutral third party (the facilitator), identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. Facilitation may conclude there, or it may continue to assist the parties to develop options, consider alternatives and endeavour to reach an agreement. The facilitator has no advisory or determinative role on the content of the matters discussed or the outcome of the process, but may advise on or determine the process of facilitation. (NADRAC’s Definitions Paper)

Facilitative ADR processes are processes in which an ADR practitioner assists the parties to a dispute to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute. Examples of facilitative processes are mediation, facilitation and facilitated negotiation. (NADRAC’s brochure: What is ADR?)

Fact finding is a process in which the parties to a dispute present arguments and evidence to a neutral third party (the investigator) who makes a determination as to the facts of the dispute, but who does not make any finding or recommendations as to outcomes for resolution. See also investigation. (NADRAC’s Definitions Paper)

Family and child mediation is defined in the Family Law Act as ‘mediation of any dispute that could be the subject of proceedings (other then prescribed proceedings) under [the] Act and that involves (a) a parent or adoptive parent of a child; or (b) a child; or (c) a party to a marriage’ (section 4). See also PDR.

Fast-track arbitration is a process in which the parties to a dispute present, at an early stage in an attempt to resolve the dispute, arguments and evidence to a neutral third party (the arbitrator) who makes a determination on the most important and most immediate issues in dispute. (NADRAC’s Definitions Paper)

Hybrid ADR processes - see combined ADR processes

Indirect negotiation is a process in which the parties to a dispute use representatives (for example, lawyers or agents) to identify issues to be negotiated, develop options, consider alternatives and endeavour to negotiate an agreement. The representatives act on behalf of the participants, and may have authority to reach agreements on their own behalf. In some cases the process may involve the assistance of a neutral third party (the facilitator) but the facilitator has no advisory or determinative role on the content of the matters discussed or the outcome of the process, but may advise on or determine the process of facilitation. (NADRAC’s Definitions Paper)

Industry Ombudsman (see Ombudsman)

Investigation is a process in which a third party (the investigator) investigates the dispute and provides advice (but not a determination) on the facts of the dispute. See also fact finding. (NADRAC’s Definitions Paper)

Judicial dispute resolution (JDR) is a term used to describe a range of dispute resolution processes, other than adjudication, which are conducted by judges or magistrates. An example is judicial settlement conference.

Med-arb see Combined processes

Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. (NADRAC’s Definitions Paper)

Mini-trial is a process in which the parties present arguments and evidence to a neutral third party who provides advice as to the facts of the dispute, and advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved. See also case presentation. (NADRAC’s Definitions Paper)

Multi-party mediation is a mediation process, which involves several parties or groups of parties. (NADRAC’s brochure: What is ADR?)

Ombudsman is a body which functions as a defender of the people in their dealings with government … In Australia, there is a Commonwealth Ombudsman as well as state and territory ombudsmen. … In addition, a number of industry ombudsmen have been appointed, whose responsibility it is to protect citizens’ interests in their dealings with a variety of service providers, especially in industries previously owned or regulated by governments, for example telecommunications, energy, banking and insurance’. (Commonwealth Ombudsman Home page: http://www.ombudsman.gov.au/about_us/default.htm)

On-line ADR, ODR, eADR, cyber-ADR are processes where a substantial part, or all, of the communication in the ADR process takes place electronically, especially via e-mail. See also automated ADR processes.

Parties are persons or bodies who are in a dispute that is handled through an ADR processes. (NADRAC’s Standards Report)

PDR (Primary Dispute Resolution) is a term used in particular jurisdictions to describe dispute resolution processes which take place prior to, or instead of, determination by a court. The Family Law Act ‘encourages people to use primary dispute resolution mechanisms (such as counselling, mediation, arbitration or other mean of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made’ (Section 14). The Federal Magistrates Act 1999 defines primary dispute resolution processes as ‘procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth, and includes: (a) counselling; and (b) mediation; and (c) arbitration; and (d) neutral evaluation; and (e) case appraisal; and (f) conciliation’ (section 21). See also ADR.

Private judging is a process in which the parties to a dispute present arguments and evidence to a neutral third party chosen on the basis of their experience as a member of the judiciary (the private judge) who makes a determination in accordance with their opinion as to what decision would be made if the matter was judicially determined. (NADRAC’s Definitions Paper)

Referrers (or referring agencies) are individuals and agencies that suggest, encourage, recommend or direct the use of ADR (or other) services. Examples are courts, legal practitioners, community agencies, professionals, friends and relatives. (NADRAC’s Standards Report)

Senior executive appraisal is a form of case appraisal presentation or mini-trial where the facts of a case are presented to senior executives of the organisations in dispute. (Street L. [1989] ‘Senior Executive Appraisal’ Australian Construction Law Newsletter, 6.)

Service users (or consumers) are those who seek, use or receive ADR (or other) services. They may not necessarily be involved in a dispute, have engaged a service provider or have participated directly in ADR processes, but may seek information or other assistance from the ADR service provider. (NADRAC’s Standards Report)

Settlement mediation is a process in which the parties to a dispute, with the assistance of a mediator, endeavour to reach a compromise between their respective positions through a positional bargaining process.

Shuttle mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement without being brought together. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. The mediator may move between parties who are located in different rooms, or meet different parties at different times for all or part of the process. (NADRAC’s Definitions Paper)

Statutory conciliation takes place where the dispute in question has resulted in a complaint under a statute. In this case, the conciliator will actively encourage the parties to reach an agreement which accords with the advice of the statute. (NADRAC’s Definitions Paper)

Therapeutic mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach agreement, and in this process seek also to resolve intra-personal and inter-personal difficulties in their relationship. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. See also transformative mediation. (NADRAC’s Definitions Paper)

Transformative mediation is a mediation process in which the mediator aims to enhance relationships and promote understanding between the parties. See also therapeutic mediation. (NADRAC’s brochure: What is ADR?)

Victim-offender mediation is a process in which the parties to a dispute arising from the commission by one of a crime against the other, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process. (NADRAC’s Definitions Paper)


1 Family Court of Australia (2000) Submission to Family Law Pathways Advisory Group; Family Law Pathways Advisory Group, op. cit; McNair (September 1995) Family Mediation National Poll, Canberra, Commonwealth of Australia; Hunter R. (2002) ‘Through the looking glass: Clients’ perceptions and experiences of Family Law litigation’, Australian Journal of Family Law, 16 no. 1, April, pp. 726.

2 See NADRAC (1997) Issues of Fairness and Justice in ADR, Canberra, Commonwealth of Australia.

3 Aboriginal Alternative Dispute Resolution (2000)  submission to NADRAC in response to discussion paper on ‘The Development of Standards for ADR’.

4 The Hon. Jerrold Cripps QC cited in Devine C (2001) ‘Is Environmental Mediation on the Way Up or the Way Out?’ Law Society Journal 39 (5) June pp 7275.

5 Family Law Pathways Advisory Group (2001) Out of the Maze: pathways to the future for families experiencing separation, Canberra, Commonwealth of Australia, recommendation 10.6.

6 Sourdin T., cited in Devine C (2001) op cit.

7 See, for example, Sourdin T. (2002) Alternative Dispute Resolution, Sydney, Lawbook Company; Street L. (1992) ‘The Language of Alternative Dispute Resolution’ Australian Law Journal, Vol. 66, pp 194198.

8 For an analysis of rights- v interest-based approaches, see Ury W, Brett J. & Goldberg S. (1988) Getting Disputes Resolved, New York, Jossey Bass.

9 Comments in forums on NADRAC’s standards paper (2000).

10 Sourdin T. (2002) op. cit.

11 Responses to NADRAC’s survey on criteria for referral to ADR (project conducted during 2000).

12 Department of the Treasury Benchmarks for Customer Dispute Resolution Schemes, Canberra.

13 For example, Felstiner W., Abel R. & Sarat A. (1980) ‘The emergence and transformation of disputes: naming, blaming and claiming’, Law and Society Review, Vol. 15, No34, p. 631.

14 See, for example, Australian Commercial Disputes Centre: http://www.austlii.edu.au/au/other/acdc/#Clauses; Energy and Water Ombudsman (Victoria) Annual Report 2001.

15 See for example, Foreword by Street L. in Sourdin T. (2002), and NADRAC (2001) A Framework of ADR Standards, Section 2.3.

16 For example, American Bar Association Code of Ethics; United Kingdom’s Lord Chancellor’s Department discussion paper (1999) Alternative Dispute Resolution, at http://www.open.gov.uk/lcd/consult/civ-just/adr/indexfr.htm.

17 Astor H. (2000) Address to National Mediation Conference, Brisbane, May 2000.

18 Jagtenberg R. & de Roo A. (2001) ‘The “New” Mediation: Flower of the East in a Harvard Bouquet’, Asia Pacific Law Review, Vol 9 No 1, pp 6382.

19 Family Court of Australia website: www.familycourt.gov.au.

20 Justice System Reform Council (2001) Recommendations for a Justice System to Support Japan in the 21st Century, www.kantei.go.jp/foreign/judiciary/2001/0612report.html.

21 ADR Conference Orientation Document [DSTI/ICCP/REG/CP(2000)1].

22 Jagtenberg R. & de Roo A. (2001) op. cit.

23 Cornelius H. & Faire S. (1989) Everyone Can Win, Australia, Schuster.

24 Lowry L. (2000) ‘To evaluate or not; that is not the question’, Family and Conciliation Courts Review, Vol. 38, no. 1, Jan., pp 4861.

25 Boulle L. (1996) Mediation: Principles, Process, Practice, Australia, Butterworths, p. 29.

26 Lowry L. (2000) op cit.

27 Australian Institute for Primary Care (2002) Children in Focus, brochure on professional development program auspiced by the Attorney-General's Department.

28 Street L. (1992) op cit.

29 See NADRAC (2002) Summary of Published ADR Statistics at www.nadrac.gov.au.

30 Family Law Council (1992) Mediation, Canberra, AGPS.

31 Note that the Attorney-General's Department has released a consultation paper on a quality framework for PDR services. The paper examines options for amending this approval process.

32 Strang H. (2001) Restorative Justice Programs in Australia, Canberra, Australian Institute of Criminology, http://www.aic.gov.au/crc/reports/strang/index.html.

33 See, for example, American Bar Association (2002) Addressing Disputes in Electronic Commerce.

34 Consumers International (2000) Disputes in Cyberspace.

35 Rifkin J. (2001) ‘Online Dispute Resolution: Theory and Practice of the Fourth Party’, Conflict Resolution Quarterly 19(1) Fall pp 117124.



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