Mediation & ADR glossary
Alternative dispute resolution (ADR) covers the processes used to resolve disputes outside formal court proceedings. This glossary covers 40 commonly used terms across mediation, arbitration, and expert determination in the Australian context.
This is a glossary of 40 key terms used in Australian alternative dispute resolution practice. Each entry has a plain-English definition and, where relevant, a citation to the governing Act or rules.
Definitions
ACICA
The Australian Centre for International Commercial Arbitration — a leading Australian arbitral institution that administers arbitrations under its own rules.
Ad hoc arbitration
An arbitration conducted without the administration of an institution, with the parties and tribunal managing the process directly.
Agreement to mediate
A written agreement between parties setting out the terms of the mediation, typically signed before the process begins.
Arb-Med
A hybrid process in which an arbitrator is authorised to act as a mediator, and if mediation fails, return to arbitration.
Arbitral award
A final and binding decision of an arbitral tribunal resolving the dispute between the parties.
Arbitral tribunal
The sole arbitrator or panel of arbitrators appointed to determine the dispute.
Arbitration
A consensual, private dispute resolution process in which the parties submit their dispute to a neutral tribunal for a binding determination.
Arbitration agreement
An agreement by the parties to submit a present or future dispute to arbitration, which may be contained in a contract clause or a separate document.
Authority to settle
The scope of the representative's mandate at a mediation to bind the client to a settlement agreement.
Binding determination
An outcome of a dispute resolution process that legally binds the parties, such as an arbitral award or court judgment.
Calderbank offer
A without-prejudice offer to settle marked as reserving the right to bring it to the court's attention on the question of costs if the recipient does worse at trial.
Case management
The procedural conduct of a dispute, including the setting of timelines, disclosure, and evidence orders.
Caucus
A private session between the mediator and one party (or their lawyer) held separately from the other party, used to explore positions and options.
Co-mediation
Mediation conducted by two or more mediators working together, often used in cross-cultural or multi-party disputes.
Commercial Arbitration Act
The uniform state legislation (based on the UNCITRAL Model Law) governing domestic commercial arbitration in Australia.
Confidentiality
The undertaking of parties and the mediator or tribunal to keep the proceedings and materials confidential, usually reinforced by agreement and statute.
Early neutral evaluation
A non-binding process in which a neutral evaluator gives an assessment of the merits of each party's case to encourage settlement.
Enforcement
The process by which an arbitral award or settlement agreement is given legal effect, typically by leave of a court.
Expert determination
A contractually agreed process in which an independent expert determines a specified issue (such as valuation), usually binding as a matter of contract.
Facilitative mediation
A mediation style in which the mediator facilitates discussion and negotiation without evaluating the merits or proposing solutions.
Heads of agreement
A short-form document recording the key terms of a settlement reached at mediation, often signed before a full settlement deed is drafted.
Impartiality
The obligation of a mediator or arbitrator to be free from bias and to treat the parties fairly and equally.
Independence
The absence of relationships or interests that could affect a mediator's or arbitrator's objectivity.
Institutional arbitration
An arbitration administered by an institution (such as ACICA or the ICC) under its published rules.
International Arbitration Act
The Commonwealth Act governing international arbitration in Australia, incorporating the UNCITRAL Model Law.
Med-Arb
A hybrid process in which the parties first attempt mediation and, if unsuccessful, the dispute is determined by arbitration (often with the same neutral).
Mediation
A voluntary and confidential process in which an impartial mediator assists the parties to reach a negotiated settlement.
Mediator
A neutral third party who facilitates communication between the parties in a mediation, without imposing a decision.
Model Law
The UNCITRAL Model Law on International Commercial Arbitration, adopted as the basis for domestic and international arbitration in Australia.
New York Convention
The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, implemented in Australia by the International Arbitration Act.
NMAS
The National Mediator Accreditation System — the national scheme for accrediting mediators in Australia.
Non-binding opinion
A written assessment by a neutral expert or early evaluator that is not legally binding but may inform settlement discussions.
Party autonomy
The principle that parties to an arbitration or ADR process are free to agree on its procedural rules, seat, and applicable law.
Procedural order
An order of an arbitral tribunal dealing with the procedural conduct of the arbitration, such as timetables and disclosure.
Seat of arbitration
The legal place of the arbitration, which determines the supervisory jurisdiction and applicable procedural law.
Settlement deed
A formal written agreement recording the terms of settlement, typically with release and indemnity clauses.
Shuttle mediation
A mediation technique in which the mediator moves between parties in separate rooms rather than holding joint sessions.
Terms of settlement
A written document recording the terms on which parties have resolved their dispute, usually signed at the conclusion of mediation.
Without prejudice
A label applied to communications made in genuine attempts to settle a dispute, which generally prevents them from being used as evidence of admissions.
Writ of enforcement
A court order giving effect to a judgment, arbitral award, or settlement, permitting enforcement steps such as seizure of property.
Research these terms in context
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This glossary is a general reference for practitioners — not legal advice. Always verify against the applicable Commercial Arbitration Act and procedural rules.
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