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ADR terminology: a discussion paper
Responding to this paper
The purpose of this paper is to stimulate discussion on terminology in ADR, to seek information about how terms are being used in ADR and to invite those with an interest in ADR to suggest future directions for ADR terminology.
NADRAC welcomes responses from a wide variety of groups. Responses may address specific questions raised in the paper, deal with questions or issues overlooked in the paper, or address the issue of ADR terminology in a general way.
Please note that, unless you advise otherwise, NADRAC may make written responses available in whole or in part to others. NADRAC may also publish responses as part of its papers. If you consider any part of your response to be commercial in confidence or confidential in any other way, please make this clear in your response.
National Alternative Dispute Resolution Advisory Council 1
ADR terminology: a discussion paper 1
ADR terminology: a discussion paper iii
Responding to this paper iii
List of questions vi
1.2 Introduction 1
1.1About this paper 1
1.2 NADRAC’s interest in terminology 1
1.3 NADRAC’s Definitions Paper 2
1.4 Diverse needs 3
1.3 Common terms: benefits and problems 5
2.1 Benefits of common terms 5
2.2 Problems with common terminology 6
1.4 The issues 8
3.1 Umbrella terms 8
3.2 Who is the third party? 11
3.3 How should ADR processes be classified? 12
3.4 Hybrid and combined processes 14
3.5 International usage 15
3.6 Is conciliation a facilitative process? 16
3.7 Is mediation purely ‘facilitative’ in nature? 17
3.8 Court based and in-house mediation 18
3.9 Mediation and counselling 18
3.10 Community mediation 19
3.11 Victim-offender mediation and diversionary conferencing 20
3.12 Emerging technology 21
3.13 Future trends in ADR 21
1.5 Possible approaches 23
4.1 Definitions or descriptions? 23
4.2 Generic or specific terms? 23
4.3 At what level is consistency needed? 24
4.4 What should be described or defined? 24
4.5 Where should you find definitions or descriptions? 26
1.6 Glossary 29
List of questions
National Alternative Dispute Resolution Advisory Council
ADR terminology: a discussion paper
ADR terminology: a discussion paper
Responding to this paper
List of questions
1.1About this paper
1.2 NADRAC’s interest in terminology
1. Should ADR terms take the form of ‘definitions’ or ‘descriptions’?
1.3 NADRAC’s Definitions Paper
1.4 Diverse needs
2. How should the needs of diverse groups be taken into account in developing terminology for ADR?
3. What, if any, problems, complaints or legal issues have arisen (or may arise) about the inconsistent use of ADR terms?
4. What are the arguments, other than those set out in this paper, for or against consistent terminology in ADR?
1.4 The issues
3.1 Umbrella terms
The ‘A’ in ADR
Quasi-judicial bodies Quasi-judicial processes are used by tribunals and other statutory bodies that investigate and decide on issues, and by industry-based adjudicators that interpret and apply a code of conduct. As in court processes, quasi-judicial processes do not provide individual parties with choices about the process, the practitioner or the outcome. Although quasi-judicial are alternatives to judicial determination, they are not ordinarily regarded as part of ADR.
Administrative determination Administrative procedures may also provide alternatives to court. For example, a predetermined formula may be used to settle liabilities or credit card charge-back arrangements may enable credit providers to resolve issues between suppliers and purchasers.
Practical solutions Service providers may provide direct and practical support to help parties to resolve their dispute. For example, a community mediation service may arrange advice on gardening or pet management to help in settling disputes between neighbours.
Implementing agreements A range of facilities are available that enable parties to implement an agreement reached. For example, electronic deal rooms enableagreements reached through e-mail to be digitally signed and validated, and escrow arrangements enable a third person or entity to act as custodian of written agreements or bonds.
Diversionary processes in the criminal justice system Diversionary programmes in the criminal justice system aim to steer an offender away from a hearing in court. Examples are treatment programmes, police cautioning, diversionary conferencing and victim-offender mediation. (See also Section 3.11)
One on one processes ADR service providers may assist one party to consider options for resolving or managing the dispute, such as when the second party declines to attend. These forms of support have been described as dispute counselling, decision-making for one or education for self-advocacy (see Glossary).
The ‘D’ in ADR
The ‘R’ in ADR
5. Do we need clarity on an umbrella term for the processes described in this paper? Can several umbrella terms be used? If so, what terms?
6. How should the terms ‘dispute’ and ‘resolution’ be defined or described? Is the purpose of ‘ADR’ necessarily to ‘resolve’ a ‘dispute’?
3.2 Who is the third party?
7. How should the position or role of the ‘third party’ or ‘intervener’ in ADR be defined or described?
3.3 How should ADR processes be classified?
Role of the third party ADR processes may be classified according to the role of the third party. NADRAC’s Definitions Paper divided ADR processes into facilitative (where the third party facilitated resolution), advisory (where the third party made an evaluation or provided advice) or determinative (where the third party made a decision). As outlined in Section 1.3, facilitative and advisory categories could be further classified together as non-determinative or consensual processes.
Level of formality
Statutory constraints ADR processes may be classified according to any statutory constraints that may apply. Some ADR processes are constrained by statutory requirements covering the rights and obligations of the parties or practitioners, and the scope and nature of any decisions made. Other processes have no direct statutory constraints.
8. Is a classification system for ADR processes needed? If so, how should they be classified?
3.4 Hybrid and combined processes
9. How should ADR terminology reflect the practice of combining ADR processes?
3.5 International usage
10. To what extent should Australian use of ADR terms reflect international usage?
3.6 Is conciliation a facilitative process?
11. How should the term ‘conciliation’ be defined or described?
3.7 Is mediation purely ‘facilitative’ in nature?
12. To what extent should the term ‘mediation’ assume that advice or evaluation is not given?
3.8 Court based and in-house mediation
13. Should courts (and other organisations) be encouraged to use terms other than ‘mediation’ for facilitative ADR processes conducted by their own officers?
3.9 Mediation and counselling
14. Can clear distinctions be drawn among ‘mediation’, ‘counselling’ and ‘therapy’? If so, what are these distinctions?
3.10 Community mediation
15. How should the different meanings of ‘community mediation’ be distinguished?
3.11 Victim-offender mediation and diversionary conferencing
16. What terms should be used to describe ADR and related processes within the criminal justice system?
3.12 Emerging technology
17. What are the implications of emerging technologies for terms used in ADR?
3.13 Future trends in ADR
18. How might future developments in ADR affect terminology?
1.5 Possible approaches
4.1 Definitions or descriptions?
19. In what circumstances should ADR processes be defined or described in a consistent fashion, and in what circumstances should different descriptions or definitions be used?
4.2 Generic or specific terms?
20. How generic or specific should ADR terms be?
4.3 At what level is consistency needed?
21. Which common ADR terms should be developed (a) across all areas of ADR practice; (b) at the sector level and (c) by individual ADR service providers?
4.4 What should be described or defined?
Elements or steps in processes
The roles and responsibilities of the ADR practitioner
22. What should be the focus of attention in developing consistency in ADR terms: processes, elements in processes, roles of practitioners, services or recording/reporting?
4.5 Where should you find definitions or descriptions?
Legislation Legislation includes principal acts and related instruments such as regulations, rules and schedules. Definitions or descriptions could be located in any of these instruments or within explanatory memoranda accompanying them. In Australia, ADR processes are rarely defined comprehensively in legislation. Legislators have used different approaches depending on the particular piece of legislation under consideration. Does inconsistency across separate pieces of legislation create confusion about the obligations and right of parties and practitioners? If so, one option could be to develop a model statute that contained definitions or descriptions of ADR terms. The USA has taken this approach through the Uniform Mediation Act (US) (2001). Alternatively, individual legislative instruments could refer to a common set of definitions or descriptions developed and promulgated by a recognised body. Acts Interpretation legislation could also include ADR definitions or descriptions where they are not contained in the principal Act. Legislative instruments may empower bodies to develop administrative directions and may also refer to other types of documents, for example, standards, codes or information material.
Administrative directions Administrative directions include practice directions issued by courts, tribunals and statutory agencies that interpret and give effect to governing legislation. Administrative directions also include formal instructions issued by line management in line with corporate policy directives. Such administrative directions could use, or refer to, common definitions or descriptions for ADR.
Codes ADR definitions or descriptions could be incorporated into professional or industry codes of practice, which provide for referral to ADR. In its report on standards, NADRAC recommended that ADR service providers adopt and comply with a code of practice that, among other things, describes the processes offered.
Contracts Definitions or descriptions could also be contained in contracts or agreements for the delivery of ADR services. Such agreements could be ongoing contracts between funding bodies and service providers, or one off contracts between individual parties and practitioners.
Standards Accreditation standards could incorporate definitions or descriptions for ADR processes. For example, quality standards used by accrediting bodies could specify the range of processes for which accreditation is granted. Competency standards for ADR practitioners could incorporate definitions or descriptions into their range of variables and training packages could include definitions or descriptions in their assessment guidelines.
Public information and marketing materials Definitions or descriptions may also be contained in information materials provided to prospective clients or to the public. ADR service providers could develop their own materials or work together to produce consistent materials. Alternatively a central body could develop guidelines on ADR information materials. Information materials also could be regulated formally. For example, the Family Law Regulations require family and child mediators to provide a written statement to parties that refers to particular features of the mediation process.
23. Where should ADR definitions or descriptions be found?
24. What alternative definitions or descriptions should be used for terms used in ADR (listed in the Glossary)?
25. What terms are used in ADR, other than those described in the Glossary?