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Flashcards in Week Two Deck (28):
1

ADR definition

ADR is an umbrella term for process, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them.

2

facilitative dispute resolution processes

Processes where an ADR practitioner helps the various parties to identify their issues, develop options, consider alternatives and help them to reach an agreement about various issues or the entire dispute. Mediation, facilitation and facilitated negotiation fall within facilitative ADR processes.

3

advisory ADR processes

Processes in which a dispute resolution practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law and the possible or desirable outcomes and how to achieve these outcomes. Expert appraisal, case appraisal, case presentation, mini-trial and early neural evaluation are examples of advisory DR processes.

4

indirect or assisted negotiation

A process where the parties use representatives to identify issues, develop options, consider alternatives and endeavour to negotiate an agreement. The chosen representatives act on behalf of the participants and may have authority to reach agreements on their own behalf. In some cases a DR practitioner may be involved, however, this facilitator will have no advisory or determinative role on the content of the matters or the outcomes. However, they may advise on or determine the process of facilitation.

5

conciliation

A process in which the parties identify the issues, develop option, consider alternatives and endeavour to reach an agreement with the aid of a conciliator. The conciliator may have an advisory but not determinative role on the content of the dispute or the outcome. 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 settlement terms, and may actively encourage the participants to reach an agreement.

6

mediation

is a process in which the parties, with the assistance of a mediator, identify the 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 outcome of the dispute. However, they may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, per a court order, or subject to an existing contractual agreement.

7

expert mediation

a process by which the parties, with the aid of the expert mediator (an individual chosen on the basis of their expertise in DR processes), identify the 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 outcome of the dispute. However, they may advise on or determine the process of mediation whereby resolution is attempted.

8

evaluative mediation

a term used to describe processes where a mediator evaluates the merits of the dispute and provides suggestion for resolution while also facilitating negotiation.

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arbitration

a process in which the parties present arguments and evidence to an arbitrator who then makes a determination.

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avoidance of the dispute

this occurs when one party makes the decision that they do not want to engage with the dispute.

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advantages of litigation

- The process is open and transparent to the public.
- It is based on uniform compliance with the law.
- Resolution is final and binding.

12

negotiation definition

Defined as involving parties with perceived conflicting interests, working towards an understanding or solution as to how they can best resolve their differences.
- There are two main models of negotiation; principled negotiation and constructive negotiation.

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principled negotiation

○ A cooperative approach that separates the people from the problem;
○ Focuses on the interests not positions
○ Generates a range of options
○ Insists that the result is based on an objective standard.

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constructive negotiation

○ Relational positioning
○ Exploration of issues
○ Generation of options
○ Commitment to reaching solutions

15

Alexander and Howieson's 10 step approach to constructive negotiation

1. Preparation
2. Opening
3. Sending signals about relationship and priority information
4. Gathering information
5. Agenda setting
6. Exploring interests
7. Generating options
8. Problem solving and bargaining
9. Outcome and documentation
10. Reflective debrief

16

mediator's role

- Mediators do not advise upon, evaluate or determine disputes
They simply assist in managing the process whereby the parties agree on the outcomes when appropriate.

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facilitative mediation

- Intended that the parties are supported by a neutral mediator to take control of the outcomes of their own disputes.
- The mediators role is to provide a clearly structured approach to assist the parties with communication, exploration of issues and the generation of options.

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stages of facilitative mediation

1. Preparation
2. Introductory remarks (introduce themselves and the process)
3. Statement of key issues and concerns of each party
4. Agenda setting (agenda for addressing and exploring each of the issues)
5. Exploration of issues
6. Private session
7. Negotiation
8. Reaching and recording of any possible agreement
9. Closing statements

19

evaluative mediation

- An advisory form of mediation where the mediator provides information or advice on the relative merits of the parties positions.
- Involves a high level of intervention by the mediator.
- Evaluative mediator makes It easier for parties to reach an agreement because they can remove some of the decision making burden.

20

transformative mediation

- A process in which a 3rd party works with the parties to help them change the quality of their conflict from negative to constructive.

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narrative mediation

- Focuses on the mediator as a manager of the parties stories
- Helps them deconstruct their conflict and move beyond the dispute.

22

conciliation

- Similar to mediation.
- Often used for legal disputes where there is a clear legislative framework.
- Conciliators often have expert knowledge
- Conciliators often take an advisory role and makes suggestions for settlement, advise on legal areas etc.

23

arbitration

- Private process where a neutral 3rd party hears the facts and evidence and makes a binding award on them
Similar to litigation

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notes on the spectrum

○ Formality changes from one end to the other.
§ Spencer defines formality as having the freedom to introduce or have conversations around whatever evidence one likes.
§ Formality can also relate to dress, the mode and type of speaking, procedural formality.
○ Consensuality changes
§ There is Consensuality of outcome and also of participation.
§ Consensuality pf outcome means that you are involved in a process where the parties need to agree on an outcome rather than have one pressed upon them.
§ Consensuality of participation is simply if the parties consent to being involved in them. All processes are generally consensual with the exception of litigation.
§ However, participation consent has been eroded over the years due to the fact that the court can no impose DR upon the parties.
○ The intervention by the third party.

25

indirect negotiation

- Indirect negotiation is when the parties use representative to identify issues, develop options, consider alternatives and endeavour to negotiate an agreement.

26

assisted negotiation

- Assisted negotiation is when a third party comes in to facilitate but they have no advisory or determinative role on the content or the outcome of the process (NADRAC, 2003,

27

case appraisal

- The process in which a dispute resolution practitioner investigates the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved (NADRAC, 2003, p. 4)

28

arbitration

- A process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner who makes a determination (NADRAC, 203, P.4)
- When an arbitrator hands down a decision, it is called an award.
- Key features of arbitration
○ Adversarial
○ Private
○ Can be voluntary or mandatory
○ Impartial third person provides a decision based on law.
○ Parties usually select the arbitrator.
○ Arbitrator is often an expert in the field of dispute, a barrister or a retired judge.
Governed by statute in Australia