Glossary of Common Mediation Terms

Alternative Dispute Resolution (ADR)

Alternative dispute resolution (commonly called ADR) refers to various methods used to resolve legal disputes outside of a formal court proceeding. Generally, these methods are less time consuming and are more cost effective than litigating in court, making them attractive to a variety of individuals and entities involved in legal disputes. The two most common methods of ADR are generally Mediation and Arbitration.

Arbitration

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators, who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. Arbitration may be helpful where the parties desire to select their own decision-maker and achieve greater confidentiality than available at trial or  have little concern with preserving appeal rights. Arbitration may be quicker and less expensive than a trial. It is an effective dispute resolution tool where the parties desire a “high-low” agreement to minimize upside exposure and yet guarantee some level of recovery for a party. Under the Revised Uniform Arbitration Act, parties can agree to engage in arbitration at any time during the litigation process.

Case Evaluation

Parties who believe their cases are “all about the money” may want an independent assessment of the monetary value of their case from a panel of randomly assigned lawyers. Michigan Court Rule 2.403 provides for a three-member panel which will provide an evaluation of a case to which sanctions for non-acceptance may apply. Case evaluation is typically conducted after discovery and motion practice has been completed. Many attorneys believe the process is not helpful because panelists do not necessarily practice in the area of law of their case. Consider either a specialized panel or asking whether one of the other “expert” forms of evaluation would be more helpful. Case evaluation should almost always take place after mediation. If scheduled before mediation, it can significantly lengthen case age and litigation costs.

Conciliation

In concilation, a neutral third party communicates by phone or letter with the participants to help them reach a mutually acceptable resolution.

Early Case Management Conference

Parties could benefit from meeting with a judge or judicial officer to discuss the trajectory and management of the case, including a scheduling order that addresses motion practice, proportional discovery, and the timing of ADR processes. Thsi conference happens very early in the litigation and is typically the first court-ordered event after the response.

Early Intervention Conference

Typically facilitated by a volunteer attorney trained in the mediation process, this conference helps parties sharpen the focus of the litigation by developing a litigation plan that may include proportional (i.e., staged) discovery, which allows parties to identify and meet various case milestones before conducting additional discovery. The process is designed to maximize the potential of an early resolution. Very early in the litigation; typically the first court-ordered event after the response. It may be conducted in preparation for the first, or in lieu of, an initial Case Management Conference with the court. Litigation can be preliminarily “triaged” by the court and staff to determine if the matter is appropriate for an Early Intervention Conference.

Early Neutral Evaluation

Early neutral evaluation is used when counsel would benefit from the “evaluation” of a mutually respected neutral party with significant experience in the type of litigation at issue. This can be very helpful in assisting counsel to focus their discovery and legal theories, and can be helpful to narrow the issues in dispute and set the stage for a later mediation. It is often used at the outset of litigation where the litigation might be streamlined by an evaluation of the case by a mutually respected evaluator. The neutral party used in early neutral evaluation is different than the mediator selected by the parties at the Case Management Conference. A neutral party can often assist the parties in the selection of a mutually acceptable Evaluator, implementing agreed upon ground rules, the voluntary exchange of information and the timely performance of the Evaluator’s task. It is often helpful in setting the stage for a subsequent mediation.

Early Neutral Fact Finding

This is used primarily when hotly contested threshold legal and/or factual issues have a significant impact on the litigation. It can be used to narrow or focus issues, for example claims involving insurance coverage, construction defects, alleged code or contract violations, applicable standards of care in malpractice claims, and appropriateness of class action certification. Early neutral fact finding is employed as early as possible in the litigation. A mutually respected subject matter expert voluntarily selected by the parties implements agreed-upon ground rules, the voluntary exchange of information, and other functions  determined by the parties. Often helpful in setting the stage for a  subsequent mediation. This neutral party is generally not a mediator who may have already been selected by the parties.

Expert Hearing

An expert hearing case involves a “battle of the experts.” This process is helpful in disputes over business valuations, assessing economic damages, professional malpractice, products liability, and other disputes involving experts. The parties, with the assistance of a neutral party, establish the ground rules for the hearing. It is typically used after sufficient document and information exchange for experts to formulate their preliminary opinions. An expert hearing can be used to streamline discovery by narrowing the issues in dispute. The hearing can also immediately precede mediation, or substitute for the parties’ opening statements. It can also be used in the course of mediation to address impasses arising from conflicting expert opinions.

Facilitator

Facilitators are selected persons who will help participants or groups reach desired goals with as much ease as possible.

Mediation

Mediation is a collaborative process in which a neutral third party meets with the participants to help them reach a mutually acceptable resolution to an ongoing dispute. The mediator does not make the final decision in the dispute. Mediation is frequently used where the parties’ interests in the dispute include: developing a creative solution; maintaining confidentiality; preserving an ongoing relationship; narrowing the issues in dispute; or high emotions are present. Mediation can also be effective in resolving or narrowing sub-disputes involving discovery, standstill agreements, protective orders, etc. Mediation can take place as soon as the parties have sufficient information to assess their risks in moving forward and the benefits of attempting an early resolution of all or a portion of the dispute. At the Early Case Management Conference, consider asking parties to mutually select a mediator who can be available as needed throughout the litigation. Unless the parties request otherwise, mediation should almost always be conducted before case evaluation.

Mediator

A neutral third party.

Mini-trial to Party Representatives

A mini-trial is used when cecision makers require significant education on the realistic risks, benefits, and potential costs of ongoing litigation, or to evaluate opposing counsel and the potential jury appeal of their claims and defenses. The parties, with the assistance of the neutral, establish the ground rules for the mini-trial. It can be a stand-alone process, but is effectively used prior to mediation taking place. If used prior to mediation, the outcome often takes the place of the opening statement or is used to deal with an impasse that arises during mediation.

Mini-trial with Mock Jury (Advisory Jury Trial)

A Mini-trial with a mock jury is used when parties strongly disagree over exposure and risks of litigation, are interested in evaluating a jury’s reaction to a case, desire to “test drive” theories to a mock jury, or are interested in shaping voir dire (the initial questioning of potential jurors) and determining optimal juror profile. The parties, with the assistance of a neutral party, establish the ground rules for the proceeding, with the neutral party typically serving as the presiding “judge.” This mock trial can be used as a stand-alone process or can used in conjunction with mediation, where it takes the place of opening statements. The parties may choose to keep the jury’s decision confidential to avoid premature “anchoring” at a subsequent mediation unless the parties reach an impasse. This mock trial is typically held post-discovery, after less expensive ADR processes have failed.

Moderated Settlement Conference

A moderated settlement conferences is held when parties could benefit from a judge’s help assess whether any common ground can be found to reduce the issues to be tried or to avoid trial altogether. It is another opportunity to explore with the parties the appropriateness of ADR options and strategies. Historically, a moderated settlement conference is convened as the last event before trial, however one can be convened after any significant case milestone to evaluate a resolution or explore ADR options.

Private Dispute Resolution Advisor

A private dispute resolution advisor is employed when parties could use help identifying which ADR process(es) might be most effective in “right sizing” the dispute resolution process(es) to achieve an economically appropriate and speedy resolution. They are typically employed at the outset of litigation, however they can be useful throughout when parties need help evaluating ADR processes and their timing.

Summary Jury Trial

At a summary jury trial, attorneys typically present evidence to a jury in a single day with binding results. This often follows a ruling on a dispositive motion or when parties want a jury determination in lieu of a ruling on a pending dispositive motion. It is most often used when the cost of a full trial is not warranted and preserving appellate rights is not important, or when the parties want a decision from a jury rather than a single arbitrator or panel of arbitrators.