ARBITRATION: An of the forms of dispute resolution involving a mutually acceptable, neutral third party making a decision on the merits of the case, after an informal hearing which usually includes the presentation of evidence and oral argument. The process has four main variations (creating numerous permutations):
In Ontario, all arbitrations, whether private, court-annexed or pursuant to statute, are subject to the Arbitration Act, S.O. 1991, c. 17, as amended, unless the application of that statute is excluded in whole or in part by the agreement of the parties or the statute which authorizes a particular arbitration. Most labour arbitrations are specifically regulated by a particular statute.
- binding or non-binding;
- voluntary or compulsory;
- private, statute-authorized, court-annexed;
- one arbitrator or a panel
BINDING ARBITRATION: Any form of arbitration in which the parties agree or a statute or court directs that the decision of the arbitrator is conclusive of the dispute. In limited circumstances, the decision is subject to judicial review (in Ontario under the Arbitration Act or the specific statute authorizing the arbitration, such as the Labour Relations Act, R.S.O. 1990, c. L.2).
All arbitrations governed by the Arbitration Act are binding by the provisions of s.37 of that Act.
NON-BINDING ARBITRATION: Any arbitration process wherein the parties are not bound to accept the decision of the arbitrator as a conclusive disposition of the dispute.
AVOIDANCE: Avoiding conflict either by preventative steps or by not pursuing a potential claim.
CONCILIATION: An informal process in which a passive third party is positioned between the parties to create a channel for communications, usually by conveying messages between parties who are unwilling to meet face-to-face, to identify common ground and to eventually re-establish direct communications between the parties. The term is often interchanged with mediation; however, conciliation involves a more passive third party. The process can be readily combined with mediation.
CONFIDENTIAL LISTENING: A process where a neutral third party reviews the confidential settlement positions of all parties and advises the parties whether a negotiable range exists but does not disclose any further information. The parties may agree beforehand to settle at the midpoint of any range revealed by the process.
DATA CONFLICTS: Data conflicts are caused by lack of information, misinformation, different interpretations of data.
EARLY NEUTRAL EVALUATION ("ENE"): 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.
INSTITUTIONAL POWER: The power that derives from a formal position within a structure that confers certain decision-making prerogatives. This is the power of a judge, an elected official, a CEO, a parent, or a school principal.
INTEGRATIVE POTENTIAL refers to the capacity to develop a solution to the dispute which meets some needs or interests on both sides, either by trade-offs between differing goals or by finding one solution that meets both side's needs. It may be contrasted with `zero-sum' solutions that assume that if one side achieves more of what they want the one side automatically achieves less.
INTERESTS-BASED: Interests-based means a solution which addresses party needs plus interests rather than the legal basis of their claim.
INTEREST CONFLICTS: Interest conflicts are caused by perceived or actual competition over substantive resources, different procedural or psychological interests.
MED/ARB: This process commences as a mediation of a dispute by a neutral third party, but if the mediation does not successfully resolve the dispute, the third party assumes the role of arbitrator and imposes a (typically binding) decision upon the parties.
MEDIATION: Some degree of intervention in a dispute or negotiation by an impartial, neutral third party who has no decision-making power. The third party informally assists disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute by structuring the negotiation, maintaining the channels of communication, articulating the needs of each party, identifying the issues, and, if requested, making recommendations on disputed issues. (see "evaluative" mediation below) The process may involve counsel, but open communication between the parties as well as between their counsel is encouraged.
MEDIATION (evaluative): An "evaluative" approach to mediation requires the mediator to provide the parties with an opinion on either the respective legal argument and/or appropriate outcomes.
MEDIATION (facilitative): A "facilitative" approach to mediation requires the mediator to assist the parties to identify the issues in dispute, clarify interests on each side and assist the parties in developing their own solution.
MEDIATION (preventative): A program which is intended to establish a more cooperative approach to conflict resolution, rather than resolving actual conflicts, and most commonly employed, in the labour relations context. It consists of three elements:
The Preventative Mediation Program of the Ontario Conciliation and Mediation Service assists in the establishment of these programs.
- joint action committees which provide a communication channel between labour and management representatives, sometimes with a mediator;
- relationship improvement seminars to establish dispute resolution strategies; and,
- joint training programs.
MINI-TRIAL: This informal and inherently flexible process, typically used in commercial disputes between corporate entities, combines mediation, negotiation and non-binding arbitration. The exact structure is determined by agreement between the parties, but involves, after a limited preparation period, the summary presentation by counsel of each party's best case to a panel consisting of the opposing decision-makers (who have had no personal involvement in the dispute) and usually a neutral third party. The third party may render an advisory opinion at the conclusion of this "information exchange". The principals then attempt to negotiate a settlement with the assistance of the third party acting as mediator. If no settlement is reached, the parties may proceed to trial. This process is distinguishable from a summary trial.
MORAL POWER: The power that comes from an appeal to widely held values. Related to this is the power that results from the conviction that one is right.
NEGOTIATION: Any form of communication, director or indirect, whereby parties who have opposing interests discuss, without resort to arbitration or other judicial processes, the form of any joint action which they might take to manage and ultimately resolve the dispute between them.
NUISANCE POWER: The ability to cause discomfort to a party, falling short of the ability to apply direct sanctions.
OBJECTIVE CRITERIA are criteria that represent an acceptable, rational and neutral standard for both parties (often a relationship-specific or industry-specific standard rather then a legal standard))
OMBUDSMAN: An independent officer of a government or other large institution who investigates complaints of administrative injustice and attempts to mediate disputes between aggrieved members of the public and the government or institution. The traditional use of the word has been limited to government and public bodies (such as universities).
PERSONAL POWER: The power that derives from a variety of personal attributes that magnify other sources of power, including self-assurance, the ability to articulate one's thoughts and understand one's situation, one's determination and endurance, and so forth. (also systemically related to class, gender, race, etc.)
PRE-TRIAL CONFERENCE: An informal dialogue between a judge, other than the trial judge, and counsel directed to encouraging settlement, focusing the issues for trial, obtaining agreements as to evidence, refining the cases to be presented at trial, and providing a non-binding assessment of the dispute by a judge. The issues which a particular conference focuses on vary between systems and judges. The parties to the dispute are typically encouraged to attend these meetings; in the absence of a party, counsel must have adequate instructions to settle the dispute.
PRINCIPLED NEGOTIATION: An alternative to traditional competitive or cooperative negotiation in which the parties focus on the issues in dispute, rather than the positions taken by the parties, and attempt to understand the needs of the other party and create new options which achieve mutual gain as assessed by objective standards.
PRIVATE JUDGING: A process agreed to by the parties whereby the dispute is presented to a neutral third party, typically an experienced lawyer or retired judge, hired by the parties, who renders a binding decision. The third party may be drawn from a "private court". The process assumes the form of a private trial, governed by the rules of the private court or rules specifically drafted by the parties, and relevant arbitration legislation. The judge may serve as a mediator initially.
RELATIONSHIP CONFLICTS: Relationship conflicts are caused by poor communication, misperceptions or stereotyping, negative behaviours
RESOURCE POWER: The control over valued resources (money, materials, labour, or other goods or services). The negative version of this power is the ability to deny needed resources or to force others to expend them.
RIGHTS-BASED: Rights-based
means a solution which relates to the respective legal rights of the parties and the strengths of
these arguments.
SANCTION POWER: The ability (or perceived ability) to inflict harm or to interfere with a party's ability to realize his or her interests.
STRUCTURAL CONFLICTS: Structural conflicts are caused by unequal control, ownership, or distribution of resources, time constraints, physical constraints, negative patterns of interaction.
SUMMARY JURY TRIAL: A flexible procedure available (or alternatively required) late in the formal litigation process once the case is ready for trial. Prior to an actual trial, counsel for the parties to a dispute present, off the record, a summary of each party's best case to a jury, selected by the court from the jury list, which renders a verdict. The jury, in fact, is a "mock jury", and its verdict is not binding, but its members are not advised of this until they have delivered their verdict. Counsel may review the case with the jury after the verdict and then continue settlement negotiations in light of the result.
VALUE CONFLICTS: Value conflicts are caused by different criteria for evaluating ideas or behaviour, exclusive intrinsically valuable goals, or different lifestyles.