Mediation Dictionary:
A reference guide of terminology relating to the gentle art of mediation
Paralegals --- Paralegals and legal assistants are non-lawyers who perform work usually done by a lawyer. They may research the law, draft documents, determine facts and provide procedural information. A paralegal who offers a legal opinion or advice without attorney supervision is breaking the law by practicing law without a license.
Parenting Consultant --- Individual appointed by stipulation of the parties or order of the court to assist the parties with communication and cooperation regarding parenting issues, meeting the children's needs and addressing the best interests of the children. This individual may consult with other professionals working with the parents and children. Parents will mutually agree upon the selection of the consultant and will sign an independent contract with the consultant that outlines the duties and authority of the consultant.
Parenting Plan --- A written agreement between parents not living together who have a child or children in common, dealing with parenting decision-making, disagreement resolution, residential arrangements and parenting time.
Participant -- Is any individual taking part in the mediation.
Partnering --- A long-term commitment between two or more organizations for the purpose of achieving specific business objectives by maximizing the effectiveness of each participant's resources. This requires changing traditional relationships and practices to a shared culture without regard to organizational boundaries. The relationship is based on trust, communication, dedication to common goals, and an understanding of each other's individual expectations and values. Expected benefits include improved efficiency and cost effectiveness, increased opportunity for innovation, and continuous improvement of quality of services and outcomes.
Party or Parties -- An individual, entity or group taking part in a mediation as a disputant. [See also Stakeholders.]
Past practice --- A particular working condition, benefit or custom that has been in existence and deeply ingrained over a period of time such that it is regarded as a part of the whole agreement.
Pattern Bargaining --- Collective bargaining in which the union tries to apply identical terms, conditions, or demands to a number of employers in an industry although the employers act individually rather than as a group.
Pathfinder Mediation -- The use of an appointed mediator to help parties clarify the real differences or information requirements they need to address in a dispute before the stage of formal settlement discussions.
Peace Building --- Peace building is the process of restoring normal relations between people. It requires the reconciliation of differences, apology and forgiveness of past harm, and the establishment of a cooperative relationship between groups, replacing the adversarial or competitive relationship that used to exist.
Peacekeeping --- Peacekeeping is the prevention or ending of violence within or between nation-states through the intervention of an outside third party that keeps the warring parties apart. Unlike peacemaking, which involves negotiating a resolution to the issues in conflict, the goal of peacekeeping is simply preventing further violence.
Peacemaking --- Peacemaking is the term often used to refer to negotiating the resolution of a conflict between people, groups, or nations. It goes beyond peacekeeping to actually deal with the issues in dispute, but falls short of peace building, which aims toward reconciliation and normalization of relations between ordinary people, not just the formal resolution which is written on paper.
Peer Mediation -- The use of a trained neutral contemporary or student mediator to bring about the resolution of conflict between parties. [See also Adult Peer Mediation.]
Peer Review --- A problem-solving process where an employee takes a dispute to a group or panel of fellow employees and managers for a decision. The decision may or may not be binding on the employee and/or the employer, depending on the conditions of the particular process. If it is not binding on the employee, he or she would be able to seek relief in traditional forums for dispute resolution if dissatisfied with the decision under peer review. The principle objective of the method is to resolve disputes early before they become formal complaints or grievances. Typically, the panel is made up of employees and managers who volunteer for this duty and who are trained in listening, questioning, and problem-solving skills as well as the specific policies and guidelines of the panel. Peer review panels may be standing groups of individuals who are available to address whatever disputes employees might bring to the panel at any given time. Other panels may be formed on an ad hoc basis through some selection process initiated by the employee, e.g., blind selection of a certain number of names from a pool of qualified employees and managers.
Persuasion --- Persuasion involves convincing another party to change their attitude and/or their behavior. Although this can be done through coercion, we generally use the term "persuasion" in a more positive sense--to refer to emotional or rational appeals based on common values and understandings.
Physical custody --- Including residence, means the routine daily care and control and the residence of the child. [see also J for "Joint Custody" and L for "Legal Custody.]
Pie card members --- Old union slang and term of contempt to describe people for whom the union card was just a source of income and who did not actually believe in union principles. For this reason, the term would sometimes be used to describe union employees or staff who held union membership by virtue of their employment.
Polarization --- Polarization of a conflict occurs as a conflict rises in intensity (that is, escalates). Often as escalation occurs, more and more people get involved, and take strong positions either on one side or the other. "Polarization" refers to this process in which people move toward extreme positions ("poles"), leaving fewer and fewer people "in the middle."
Policy Dialogue --- Informal discussion of public policy issues incorporating many different interested parties. This process usually clarifies key issues, and increases understanding between groups that are often publicly opposed to one another. Not to be confused with a formalized process used to decide policy.
Position --- In the context of a dispute, a position is the ground upon which a party maintains their right to hold the belief that they are right and the outcome of the dispute should favor them. [See also Interests.]
Post-Settlement Blues --- This term describes the feelings of regret experienced by some negotiators soon after agreeing to a settlement. They have difficulty remembering events during the negotiation that caused them to relent on certain terms within the agreement and afterwards wonder if they may have given away too much. [See also Buyers Remorse.]
Practitioners --- Practitioners are people who engage in conflict resolution as a profession--mediators, arbitrators, facilitators, and diplomats, for example.
Precedent --- An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case arising later. A lower court is expected to follow the precedents set in the higher courts.
Predispute ADR Contract Clause --- A clause included in the parties' business agreement to specify a method for resolving disputes that may arise under that agreement. It may refer to one or more ADR techniques, even naming the third party that will serve as an arbitrator or mediator in the case. Predispute agreements requiring arbitration of consumer disputes, or entered into as a condition of employment, have generated substantial backlash lately from people who argue that these clauses are adhesion contracts.
Pre-hearing Review -- In arbitration - as for pre trial review.
Preliminary Meeting -- In arbitration - as for Pre Trial review.
Pre-trial Review -- In litigation the preliminary consideration of a case with a view to giving directions as to its speedy future handling.
Preemption --- The right of one law over another in circumstances where the rights or remedies of the one law conflict with the other. Generally, federal laws preempt state laws.
Pre-negotiation --- The process of preparing for negotiation. It includes assessing the conflict and designing the process as well as anything else necessary to bring disputing parties together to begin resolving their differences. May be used interchangeably with convening.
Preponderance --- A greater weight of evidence, or evidence which is more believable and convincing in comparison to that which has been presented by the other party in a suit or grievance.
Presumption --- An advantage of proof legally accorded to one side in a suit or trial that in the absence of any evidence or without convincing evidence to the contrary that party's argument or version of the facts shall be accepted as true, and the burden of proof rests with the opposite side.
Pretext --- A legal excuse to do something which otherwise would be illegal. In discrimination cases, for instance, it may be shown that the apparently innocent motive behind an action may conceal a discriminatory intention.
Prima facie case --- A Latin expression meaning "at first appearance," it is the minimum threshold amount of evidence or proof sufficient for the accuser or plaintiff to win the case if there were no defenses or additional evidence presented by the accused/respondent.
Principled Negotiation --- This approach to negotiation was developed by Fisher and Ury and first presented in their best-selling book, Getting to Yes, in 1981. Basically an integrative negotiation strategy calls for "separating the people from the problem," negotiating on the basis of interests rather than positions, identifying options for mutual gain, and using objective criteria to judge fairness of any proposed settlement.
Private Judges or Rent-A-Judge --- A fairly new innovation by some private dispute resolution firms and some courts. Retired judges typically are used to hear these cases which would have been taken to real court, and the parties agree in advance to accept the decision as if it were a real court decision. The advantages of this process are speed, privacy, and the ability of the parties to select a judge with expertise in the disputed matter. Also called, see below;
Private Judging --- The popular name given to the procedure in which the court can (on stipulation of the parties) refer a pending lawsuit to a private neutral for trial with the same effect as though the case were tried in court. The verdict can be appealed through the regular appellate court system.
Problem Solving --- This term is sometimes used to refer to analytical problem solving workshops that seek to analyze and resolve conflicts based on identifying and providing the underlying human needs. In other situations, it refers to an approach to mediation that focuses primarily on resolving the conflict (as opposed to transforming the relationships of the people involved).
Problem Solving Approach --- The problem solving approach to conflict involves working cooperatively with the other disputants to solve a common problem. It can be contrasted with the adversarial approach which views the other disputants as opponents or enemies to be defeated, not cooperated with.
Pro bono --- A Latin phrase meaning "for the good," short form of "for the public good. An arrangement whereby a lawyer will accept a client for representation without charging the client any fees or retainer at all.
Project Mediation -- A dispute prevention mechanism where a mediator is appointed at the outset of a long project or major business relationship, to act as the point of contact when communication problems are anticipated or arise.
Pro se --- A Latin phrase meaning 'for oneself.' An arrangement in which a party to a law suit is represented by him or herself.
Protected Class --- Anti-discrimination laws only regard unequal or unfair treatment as unlawful discrimination when the victim is a member of a defined group known as a protected class. The first civil rights laws protected only race and color. As the principle of discrimination evolved over the years more laws were passed and more groups were added. Federal protected classes now include race, color, national origin, religion, sex (or gender), age (over 40), and disability. State law (HEPA) further protects ancestry, marital status, sexual orientation, as well as arrest and court record (in most cases).
Positional Bargaining -- A negotiating process where each party puts forth its ideal view or demand of how the dispute will be resolved. Each side then states, restates and refines its position in the hope of moving towards a solution acceptable to all parties. Often, the positions are so contrary and each party's view of the dispute so mutually-exclusive that the only hope is for one or more parties to compromise. With the parties each conceding their interests or "compromising," the solution is reduced to a level that is unsatisfactory for all.
Punitive damages --- A Monetary award made by the court that goes beyond simple reimbursement for losses suffered (actual or compensatory damages) and, in the manner of a fine, assesses the defendant an amount of cash designed to punish the defendant for his evil behavior or to make an example of him/her.
Power Balancing --- The mediator has a duty to ensure balanced negotiation and to prevent manipulative or intimidating negotiation techniques.
Public Policy Mediation --- A form of mediation that brings together representatives of business, public interest groups, and government to negotiate agreements on policy development implementation, or enforcement. Facilitators or mediators are usually used to organize and guide the process.
