Glossary of Terms
ADR - Alternative Dispute Resolution
Any method other than litigation that is utilized in the resolution of a dispute or lawsuit.
Arbitration is a generic term for a range of dispute resolution processes involving the referral of a dispute to an impartial third party who, after giving the parties an opportunity to present their evidence and arguments, renders a determination in settlement of the dispute. Most commonly used in the United States to describe a private, voluntary, adjudicative, and usually binding process established by mutual agreement of the disputants to resolve existing or future disputes.
AUSA - Assistant United States Attorney
U.S. Attorneys prosecuting cases within the federal district courts of the United States.
BDRS - Bureau Dispute Resolution Specialist
Under the DOI ADR Policy, published in August of 1996, each bureau of the DOI was required "to designate a senior official as a Bureau Dispute Resolution Specialist (BDRS)" to oversee ADR activities and initiatives within that bureau.
Attempt, usually by a third party who may or may not be neutral, to encourage the parties to settle their disputes. In the U.S., conciliation is often distinguished as a more passive, less structured form of intervention than mediation. Conciliators are focused on encouraging the parties to negotiate and reach agreement on their own.
Convening involves the use of a third party to organize disputants for negotiations and assist them in deciding whether to use ADR and in the selection of an appropriate ADR professional.
In public policy disputes, a technique used by a convenor to identify and bring together stakeholders for negotiations over a disputed matter of policy or proposed regulation. The convenor will contact the stakeholders to understand their concerns and to assess the feasibility of undertaking formal discussions. Officially recognized in regulatory negotiation and in public policy dialogue and defined under U.S. federal regulations as "a technique that helps identify issues in controversy and affected interests. The convenor is generally called upon to determine whether direct negotiations among the parties would be a suitable means of resolving the issues, and if so, to bring the parties together for that purpose" [1 C.F.R. Section 305.86-3 App. (1993)].
Dispute Management Plan
Upon completion of the Early Case Assessment Report, the Dispute Resolution Team will work together to craft a dispute management plan which will serve as a roadmap for a resolution strategy as well as a continuing litigation strategy (if the matter is not resolved early) for a particular matter.
DOI - Department of the Interior
As the nation's principal conservation agency, the U.S. Department of the Interior has responsibility for most of our nationally owned public lands and natural resources. From its establishment in 1849, the Department has managed many varied programs including Indian Affairs, administering land grants, improving historic western emigrant routes, marking boundaries, and conducting research on geological resources.
The Department's mission is (1) to encourage and provide for the appropriate management, preservation, and operation of the Nation's public lands and natural resources for use and enjoyment both now and in the future; (2) to carry out related scientific research and investigations in support of these objectives; (3) to develop and use resources in an environmentally sound manner, and provide an equitable return on these resources to the American taxpayer; and (4) to carry out trust responsibilities of the U.S. Government with respect to American Indians and Alaska Natives.
The Department of the Interior is comprised of a number of bureaus and offices including the Bureau of Indian Affairs, the Bureau of land Management, the Bureau of Reclamation, the Fish and Wildlife Service, the U.S. Geological Survey, the Minerals Management Service, the National Park Service, the Office of Surface Mining, the Office of Insular Affairs, and the Office of the Secretary.
DOJ - Department of Justice
The Department of Justice represents the citizens of the United States in enforcing the law in the public interest and plays a key role in protection against criminals; ensuring healthy competition of business; safeguarding the consumer; enforcing drug, immigration, and naturalization laws; and protecting citizens through effective law enforcement. The Department conducts all suits in the Supreme Court in which the United States is concerned. It represents the Government in legal matters rendering legal advice and opinions, upon request, to the President and to the heads of the executive departments. The affairs and activities of the Department are generally supervised and directed by the Attorney General.
ECA - Early Case Assessment
Generally, early case assessment provides a mechanism to effectively evaluate and quickly resolve disputes and claims, usually within 60 to 120 days after the dispute arises, while at the same time improving the quality of the overall dispute resolution process.
Early Neutral Evaluation
Early neutral evaluation is a process in which a lawyer with expertise in the subject matter of the litigation acts a neutral evaluator of the case. Each side presents a summary of its legal theories and evidence. The evaluator assesses the strength of each side's case and assists the parties in narrowing the legal and factual issues in the case. This conference occurs early in the discovery process and is designed to streamline discovery and other pretrial aspects of the case. The early neutral evaluation of the case may also provide a basis for settlement discussions.
Collaborative process used to help a group of individuals or parties with divergent views reach a goal or complete a task to the mutual satisfaction of the participants.
A process in which a neutral third party, or fact-finder, investigates a dispute and issues a report establishing the relevant facts. Disputants may agree before or after the report to be bound by the conclusions, they may use it as a basis for settlement, or they may move to other processes. Joint fact-finding refers to two different kinds of fact-finding processes. In public policy dispute resolution, facilitators often encourage the stakeholders to start by jointly gathering and determining the salient facts. In some cases, the parties will designate representatives to work together to develop responses to factual questions relevant to a controversy. In civil disputes, the parties may engage a neutral, mutually selected expert to make determinations on contested facts. This may avoid the impasses that arise in negotiation when the parties are using "dueling experts" in preparation for adjudication. In either usage, joint consideration of the results usually helps negotiations understand which alternatives are supportable.
Mediation is a process in which a neutral third party facilitates settlement discussions between parties. The neutral has no authority to make a decision or impose a settlement upon the parties. The neutral attempts to focus the attention of the parties upon their needs and interests rather than upon rights and positions.
A non-binding, abbreviated trial usually presided over by a neutral. Attorneys present their best case to party representatives with authority to settle. Generally, no decision is announced by the neutral. After the hearing, the party representatives begin settlement negotiations, perhaps calling on the neutral for an opinion as to how a court might decide the case.
Negotiation generally refers to the process of conferring with another party with the purpose of securing agreement on some matter of common interest. It is typically consensual and private, with minimal third-party involvement. It is one of the most common approaches to making decisions and managing disputes.
The term "neutral" refers to an impartial person who facilitates discussions and dispute resolution resolution between disputants in mediation, early neutral evaluation, and arbitration, or who presides over a summary jury trial or mini trial. Thus, mediators, arbitrators, case evaluators are all classified as neutrals.
In the early case assessment program, the program administrator ensures that uniform processes are followed to ensure quality, efficiency, lower costs, and improved results by initiating the early case assessment for each matter; facilitating the early case assessment process in its entirety; tracking and reporting on the program; coordinating continual communication with client agencies and others about the program; serving as the key program contact to ensure consistency and uniformity; and coordinating the analysis, measurement, and improvement of the program.
Dispute prevention process involving team-building activities to help define common goals, improve communication, and foster a problem-solving attitude among a group that must work together throughout contract performance. The primary goal is to encourage contracting parties who are about to work together on a project to be less adversarial and more cooperative. Partnering was developed and has until recently been used primarily in the construction industry.
Complex process in which multiple parties seek consensus on broad public issues. Facilitated process in which stakeholders and others who have interests that are or may become the subject of regulation identify issues of concern and points of agreement and disagreement. The process yields recommendations for either regulation or self-regulatory behavior and should be distinguished from a public hearing, which receives only citizen comment, and from a Reg-Neg, which is concerned with the shaping of actual regulations through negotiation.
A lawyer who serves in the role of settlement counsel generally has a pre-determined time frame within which to attempt resolution of a dispute through traditional negotiation or the use of other ADR processes. If settlement is not reached through the efforts of settlement counsel, his or her involvement in the matter generally comes to an end. Typically, settlement counsel is well-versed in the cognitive and strategic barriers that exist to settlement and is able to assist litigating counsel to overcome those barriers, much like a skilled mediator would do later in a matter.
Summary Jury Trial
The summary jury trial is a non-binding abbreviated trial by mock jurors chosen from the jury pool. A judge or magistrate presides. Principals with authority to settle the case attend. The advisory jury verdict which results is intended to provide the starting point for settlement negotiations.