Glossary of Terms

Alternative Dispute Resolution (ADR) The use of methods such as mediation and arbitration to resolve a dispute instead of litigation.

Appraisal – The act of estimating or judging the nature or value of something or someone; an estimate of value, as for sale, assessment, or taxation; valuation.

Arbitration – An alternative means of settling a dispute by impartial person(s) without proceeding to a court trial. Arbitration process can be binding or nonbinding. Disputes in arbitration can be resolved by a single neutral arbitrator or a panel of three arbitrators (tribunal).

Claimant – One who makes a claim or one who asserts a right or an interest. In Arbitrations, it is usually an individual/entity that initiates the arbitration process.

Referee Someone other than a sitting judge who is appointed by the court to do any of the following: (i) to hear and make a binding decision as to all or a portion of an action or proceeding (general reference); (ii) to investigate the facts of a case, examine evidence and report to the court on such findings (special reference); (iii) to hear and determine discovery motions and disputes relevant to discovery and report findings and recommendations to the court (discovery reference).

Evaluative Mediation – style of mediation in which the neutral relies more on experience and subject matter expertise to predict possible outcomes.

Facilitative Mediation – as opposed to the evaluative mediation style, facultative mediators rely on people skills and persuasion to guide the parties toward a realm of agreement.

Fact Finding – A process by which the facts relevant to a dispute are determined in order to decide a controversy.

Mediation – A confidential, non-binding process in which a trained mediator facilitates communication between disputants and assists parties in reaching a mutually acceptable resolution of all or part of their dispute.

Mediation-Arbitration (“med-arb”) – usually involves a single neutral who first serves as a mediator, and if the parties cannot settle their dispute in mediation, the neutral then serves as an arbitrator to resolve the dispute. Same-neutral med-arb combines the best characteristics of mediation and arbitration such as speed, efficiency, flexibility and finality into a single process. Med-arb process is also often more cost efficient for the participants. The parties utilizing the med-arb procedure, however, must be cognizant of the potential that the neutral might decide the arbitral case by utilizing confidential or privileged information learned during mediation. The neutral acting in the capacity as both a mediator and an arbitrator, usually has the parties and counsel execute a waiver of conflict, wherein the parties waive any claim of prejudice and/or conflict resulting from a neutral undertaking to act in both capacities as a Mediator and as the Arbitrator, as well as agree not to challenge the decisions of the Arbitrator on the basis of him acting in these dual roles.

Mini-Trial A non-binding hearing, generally reserved for complex cases, in which counsel for each party informally presents a shortened form of its case to settlement-authorized representatives of the parties in the presence of a judge or a neutral. At the conclusion of the mini-trial the neutral/judge will not render a decision, rather the representatives meet, with or without the judge or neutral, to negotiate a settlement.

Mock Trial/Moot Court – a mock trial is a simulation of a lower-court trial, while moot court simulates a hearing at the appellate level. Counsel preparing for a trial or an appeal might use a mock trial/moot court to test theories, practice presentation skills, and gain feedback from an experienced neutral.

Neutral – A third party, either a retired judge or an attorney, privately retained by the parties to act in neutral capacity in the ADR process selected by the parties.

Neutral Evaluation – Each party and their counsel presents the factual and legal bases of their case to a neutral person called an “evaluator.” The evaluator then gives an opinion on the strengths and weaknesses of each party’s evidence and arguments and makes a suggestion on how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute and/or with significant trial experience in the jurisdiction. The evaluator’s opinion is not binding. However, it is a useful tool for trying to negotiate a resolution of the dispute.

Neutral Expert Fact-Finding – the parties privately employ neutrals to render expert opinions that are conclusive or nonbinding on technical, scientific or legal questions. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.

Non-Binding Arbitration – This process works the same way as binding arbitration except that the neutral’s decision is advisory only. The parties can agree in advance to use the advisory decision as a tool in resolving their dispute through negotiation or other means.

Panelist – Disputes in arbitration can be resolved by a single neutral arbitrator or a panel of three arbitrators (tribunal). A member of an arbitration panel is called a panelist. Often when an arbitration clause provides for appointment of an arbitration panel, each party selects one arbitrator to the panel to act in either a neutral capacity or as a party-advocate and then the two appointed arbitrators will select an additional arbitrator as a chairman of the tribunal, to avoid deadlock arising.

Private Trial/Judge Pro Tem –Private trials are conducted in essentially the same manner as court trials. All law and motion matters, discovery disputes and case management conferences, as well as the trial, are heard by the temporary judge.

Receivership – The position or function of being a receiver in charge of managing assets and administering the property of others. Among other duties, a receiver may be appointed to aid in temporarily running a business during pending litigation, assist with the winding up of a business, or oversee the sale of assets.

Respondent – In an arbitration proceeding, Respondent is a party who responds to an arbitration demand. The respondent is equivalent to a defendant in a lawsuit. In court, respondent can also be a party against whom an appeal or a motion is filed.

Special Master – A “special master” is appointed by a court to carry out some sort of action on its behalf. They may be appointed pre-trial, during trial, or post-trial. In Federal Court, a Referee is called a “special master. ”Activities carried out by special masters are as varied as the actions taken by courts. They are often appointed as facilitators in family law cases. In construction defect cases, the parties stipulate to have a “special master” appointed so he/she can manage pre-trial discovery and facilitate settlement before trial. A special master may also be appointed pre-trial to manage part of a particularly complex case involving many parties and issues, i.e., mass personal injury claims arising from alleged environmental or occupational exposure to chemicals.