The same word often has several different meanings in international dispute resolution circles. It is thus suggested for the purposes of the GPC Series that a common nomenclature be used to ensure the consistency and comparability of all data generated at all GPC events. It is thus proposed to clearly delineate four (4) distinct dispute resolution processes: litigation, arbitration, conciliation and mediation for the purposes of the GPC Series as follows:
- “Litigation” for the purposes of the GPC Series will refer to a process before a national or international court, whose judges are appointed by a national or intergovernmental body. In some cases, it may involve a jury that is monitored and appointed by the court. It will be identified as an “adjudicative process” in that final awards in litigation are provided by national courts or tribunals, based on findings of fact and law or equity, applying a legal syllogism.
- “Arbitration” for the purposes of the GPC Series will refer to a process conducted by a tribunal that has been privately appointed by the parties or an arbitration center pursuant to a contractual agreement to use arbitration. It will also be identified as an “adjudicative process” in that the final award is provided or confirmed by the tribunal, usually based on findings of fact and equity, although other norms may also apply if the parties consent to them (e.g., industrial practices, religious principles, or general principles of fairness).
- “Conciliation” for the purposes of the GPC Series will refer to a process where third party neutrals are used to help the parties reach their own settlement based primarily on a review of relevant facts and applicable norms (e.g., laws, industrial practices, religious principles, or general principles of fairness). Although conciliation can sometimes be referred to as “non-binding arbitration” or “early neutral evaluation” in some countries, it will be identified as a “consensual process”, which differs from litigation, arbitration or other evaluative processes in that the outcome will depend on the disputants’ accepting it. Although a conciliator is often expected to make a proposal it is non-binding if the parties do not accept it or are unwilling to compromise.
- “Mediation” for the purposes of the GPC Series will refer to a process where third party neutrals are used to help the parties reach their own settlement based primarily on an understanding of their future needs and interests. It will be distinguished from conciliation for the purposes of the GPC Series insofar as the facts and applicable norms that define a settlement outcome in conciliation only serve as a benchmark against which a settlement proposal can be assessed, but the outcome may have nothing to do with these factors and may be based purely on subjective interests. Mediation, like conciliation, will be defined as a “consensual process.”
For the purposes of the GPC Series, litigation and arbitration will be identified as adjudicative processes insofar as a third party tribunal decides the issues in dispute and issues a judgment or award. This judgment or award may be binding or non-binding (e.g., advisory arbitration or adjudication, which is subject to judicial review), or subject to an appeal system. They will be jointly referred to as “adjudicative” even if the process by which they were initiated was consensual, since for the purposes of the GPC Series it is the outcome of the process that will be focused on.
For the purposes of the GPC Series, mediation and conciliation will be identified as consensual processes insofar as the parties must agree to any outcome and the neutrals cannot not impose one on them. This outcome may be binding (e.g. if a settlement agreement is signed, or is converted into a judgment or award) or non-binding (e.g., where no formal agreement is reached, or the parties simply terminate other proceedings).
The key distinction between adjudicative and consensual processes for the purposes of the GPC Series will lie in the degree to which the parties must agree to an outcome and not only the process by which they entered into a process. In adjudicative processes the final outcome will depend on the opinion of the decision-maker or tribunal, whereas in a consensual processes it will depend on the parties’ mutual acceptance of the outcome at the end of the proceedings. Using this common nomenclature should hopefully enable a more “granular” discussion and understanding of the preferences and different major processes available to users at each GPC event.
To facilitate using this nomenclature consistently throughout the GPC Series, a video has been prepared by Joanna Kalowski, an Australian neutral. This video will contain an explanation of the four basic types of dispute resolution defined above and the distinction made between adjudicative and consensual processes. The video will be translated using subtitles to facilitate a common understanding of this nomenclature. It will lasts less than 10 minutes and will be shown at the beginning of each event and will also be available on this page at some future date.