C - H

Caucus

A private meeting between the mediator and one of the disputants, usually called when the mediator senses that there are hidden interests or information that doesn’t surface during the joint session.   Within a caucus, the mediator attempts to discover those hidden interests.  All information disclosed during caucus is confidential and will not be disclosed without permission of the party.

Common Interests

Jointly held substantive, psychological or procedural interests held by the parties to the negotiation.

Competition

A negotiation strategy in which one party pursues his interests selfishly wit no regard for the other party.  It’s a win/lose process wherein one party perceives that the contested resources are limited and his needs can only be met if the other party receives less of the limited resource.

Conciliation

Mutual, substantive or procedural interests of the parties in the dispute.  Usually, identifying common interests facilitates agreement.

Conflict

A dispute between two or more parties over actual or perceived competing interests.  Rather than be destructive, conflict can stimulate communication, problem-solving, goal identification and constructive resolutions.

Consensus

A settlement process where an agreement is reached after identifying the interests of all parties and then integrating these needs to fashion the agreement.  All parties may not be equally satisfied or may not be equally supported, but consensus addresses all interests.

Consultation

A consensus-building process in which persons or groups exchange problem-solving ideas to reach a collaborative decision.  Consultation requires trust, sublimation of self-interest, cooperation, frankness and accurate information exchange.

Contract

A legal, formal mutually binding agreement between two or more persons outlining the terms and conditions which bind the parties to performance, subject to review of the courts.

Court-Annexed Arbitration

An ADR mechanism by which a judge refers civil disputes to an arbiter who renders a prompt, non-binding decision.  Some states require the party who refuses to accept the arbited award to pay court costs for his continued pursuit if he is not awarded a greater award after the trial.

Dispute

A conflict or controversy between two or more parties.  Usually the dispute evolves over perceived injustices or imbalances.  However, a dispute need not be destructive; it can be a catalyst for creative and constructive change.

Early Neutral Evaluation

A court-directed resolution process presided over by an attorney, hand picked by the court, who has experience related to the issues of the dispute.  The sessions usually take place in the courthouse or an attorney’s office with the parties and their representatives.  No rules of evidence and no direct or cross-examinations are allowed.  After discussion, the evaluator reviews the case and asks the parties to attempt resolution before his evaluation is considered.  If there is no resolution, the evaluator outlines case planning and discovery options available to both parties when they proceed to trial.

Facilitation

A resolution strategy which is a collaborative process in which the neutral assists a group of individuals or parties with divergent issues to proceeded toward closure.  The neutral may function as an expert and establish guidelines for procedurals without making substantive contributions.

Factfinding

Entails the appointment of a person or a group with technical expertise in the subject matter to evaluate the matter presented and file a report establishing the “facts.” The factfinder is not authorized to resolve policy issues.  Following the findings, the parties may then negotiate a settlement, hold further proceedings, or conduct more research.

Hidden Agenda

Interests or issues a party may be unwilling or reluctant to disclose to the other party.   Hidden agendas affect the success of mediation.  The mediator should try to uncover these issues during caucus or, during a joint session, practice re-phrasing or re-framing to encourage the party to state that issue.

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