Mediated Solutions
This is MSIís own glossary of key dispute resolution terms.

The glossary is designed to assist our clients and users of the website in understanding the various, Ďterms of artí extant in the field of conflict management. While the Glossary is relatively complete, it is not yet comprehensive.

If you have any questions or suggestions, please donít hesitate to get in touch with one of MSIís Directors.

Adjudication: Any dispute resolution process in which a neutral third party hears each party's evidence and arguments and renders a decision that is binding on them. This decision is usually based on objective standards. The term adjudication can include arbitration and litigation.

ADR: ADR stands for Alternative Dispute Resolution, although some authors have argued it really refers to Appropriate Dispute Resolution. ADR encompasses a wide range of mechanisms such as negotiation, fact-finding, mediation and arbitration, to name but a few, that are alternative to traditional litigation or adversarial adjudicative processes. ADR has been characterized as being a friendly, private, less costly and time saving series of methods of resolving individual and organizational conflict. Many ADR processes leave control of the process and of the outcome in the hands of the parties.

Arbitration: A dispute resolution process where, in an informal hearing, a mutually acceptable neutral third party hears evidence and oral arguments and tenders a decision based on the merits. The process can be either voluntary, where the parties choose to submit their dispute to arbitration, or compulsory, where a contract, court, or statute requires the submission. The decision reached by the arbitrator can be either binding or non-binding.

Conflict: For the purposes of dispute resolution, conflict has been defined as the perception of incompatible interests. This definition encompasses the subjective perceptions of each of the disputants and acknowledges different underlying needs, concerns and values of the parties.

Conflict Analysis: Stage during which data collected from interacting with the parties and other sources is synthesized and interpreted in an attempt to understand the elements of the dispute; people, dynamics, issues, and interests. The exercise is useful to negotiators and third parties such as mediators.

Conflict Management: An approach to conflict whereby parties can develop protocols or arrangements for preventing disputes from occurring and pre-determine the range of appropriate responses to conflict should one arise. Conflict Management implies the ability to control a particular conflict or class of conflicts and the effects through either individual skill or institutional mechanisms. It combines conflict analysis with attempts to control the dynamics of the conflict to yield the most positive organizational and personal growth and change. This may involve the use of a variety of dispute processing and conflict resolution mechanisms.

Conflict Management System Design and Consultation: Conflict management design extends and applies theory and best practice concepts to the specific area of organizational conflict. Conflict management design draws from the full range of OD theory and practice, particularly systems thinking, change intervention design, search processes, relationship building, strategic redesign and implementation, and action learning for improved conflict management systems development.

Conflict Prevention: Study and practice of means by which to prevent the incompatibilities of interests and behavior that constitute conflict. In this sense, conflict refers to the broader state of incompatibility that may or may not give rise to a dispute. Conflict prevention is more narrowly focused than Conflict Management and often involves structural adjustments such as legislation (for example, no-fault laws) or generic solutions (such as clarification of company policy or gender-sensitivity training).

Conflict Resolution: Study and practice of means by which to end the incompatibilities of interests and behavior that constitute conflict. In this sense, it refers to a professional field and academic discipline concerned with the nature of generic conflict (as opposed to a specific conflict) and with productive techniques to address conflict. Also, the term may be used to refer to an activity ("the parties are engaged in conflict resolution").

Court-Annexed Mediation: This form of mediation exists where mediation services are incorporated into the court process and may either be ordered by the court or voluntarily agreed to by the parties. The parties maintain their rights to proceed to trial if mediation fails. For example, under Civil Rule 24.1 in Ontario, parties to a civil action must schedule mediation within 60 days of the filing of a statement of claim.

Dispute Management System (DMS): Institutionalized framework of handling disputes within an organization. The design of a DMS involves examining the causes of disputing within an organization and then creating a process for constructively managing disputes as they arise. Also called Dispute Resolution System.

Dispute Resolution: Study and practice of resolving disputes. Although the range of possible dispute-handling processes is quite broad, including war and avoidance, the field of dispute resolution is primarily focused on Alternative Dispute Resolution processes, especially mediation and arbitration.

Early Neutral Evaluation: A non-binding process, typically required under the relevant rules of court, wherein the parties and their counsel meet shortly after the initiation of a court proceeding and confidentially present the factual and legal bases of their cases to each other and a third-party lawyer experienced in the substantive area. The third party identifies issues, assesses the strengths of the cases, structures a plan for the progress of the case, and if requested by the parties, may encourage settlement.

Facilitation: "Facilitation" is the use of a third party neutral to help multi-party work groups accomplish the content of their work by providing process leadership and process expertise. Facilitation and mediation are similar, but in the most elementary way, they are drastically different. Facilitation is primarily used pre-conflict or at least pre-crystallized conflict.

Fact Finding: Fact-finding is a form of inquisitive dispute resolution in which an investigation is conducted by an appointed neutral third party. Evidence supporting the positions of the parties is gathered with a view to identifying and focusing attention on the major issues in dispute and resolving differences as to the facts surrounding them. The underlying objective of fact-finding is to generate insight into the opposing views on the issues in dispute. A determination is made as to what are the facts of the issues and the extent of the reasonableness of the parties' positions in relation to those facts. A written report may be issued which typically is not binding on the disputants at this stage, but it may be used later in a different process such as arbitration. The written report may simply record the facts as found, or it may include recommendations for settlement. The recommendations are non-binding; otherwise the process would be better called arbitration. This technique is very often used to investigate allegations harassment or discrimination.

Interest-based Negotiation: An approach to negotiation that is characterized by a focus on underlying interests rather than positions. An interest is a need, desire, concern, want, or fear that motivates behaviour in negotiation. A position is a desired outcome in the negotiation. Behind every position taken in negotiation will be stated or underlying interests. Focusing on interests can open up opportunities for creative solutions.

Mediation: Mediation has been defined as the use of a neutral third party to facilitate discussion about mutually acceptable options to resolve a dispute. There are many definitions of mediation but in the simplest form, mediation consists of assisted negotiation. The process can involve legal counsel. As in arbitration, the process can be court-annexed.

Negotiation: Any discussions or dealings wherein parties with opposing interests seek to establish areas of agreement, settlement, or compromise so as to manage and ultimately resolve their dispute. This does not include methods or resolution that entail arbitration or any judicial process. Negotiations can be principled. This occurs when the parties, rather than focusing on their "positions," deal with the underlying issues, seek to appreciate the needs of the other party, and try to achieve an agreement based on objective standards.

Ombudsperson: An independent person or office that deals with complaints against perceived administrative, governmental, or organizational injustice. Typically Ombuds have the power to refer disputes to the appropriate process, investigate and occasionally to publicize and/or monitor trends. Ombuds also mediate and may make non-binding recommendations. Ombuds may be characterized as organizational or traditional (i.e. the Ombudsman of Ontario) depending on the mandate and constituency served.

Partnering: Partnering establishes working relationship through a mutually developed formal strategy of commitment and communication. Originally designed to facilitate efficient completion of large construction projects, Partnering refers to process, which allows a group of individual to meet and relate as equals in order to gain mutual understanding of roles a responsibilities and to buy in to common goals. The facilitator moves the parties through a structured process to identify, examine and prioritize potential challenges and to jointly develop a preventive dispute resolution mechanism. Partnering does not change contractual agreements, but may result in a mutually agreed Charter or guideline of collaborative objectives that defines the partiesí preferred working relationship.

Poisoned Work Environment: A poisoned work environment refers to a workplace in which the behaviours of the people within the group negatively affect communication and productivity. A poisoned work environment may involve employees from any level, senior management to the front-line. From an organizational point of view, a poisoned work environment has systemic implications and may possibly include harassment or other kinds of vexatious behaviours.

Process Review: An independent, impartial examination by a third party neutral of organizational practices and procedures according to a mandate prescribed by the retaining party. Most often results in a confidential written report, documenting practices, problem areas and recommendations as requested. The goals of process review are client specific but often include quality assurance, risk management, and non-blame-laying analysis. The process may include review of documents, confidential interviewing of witnesses as well as application of best practices expertise and theory.