ADR Terminology
The following words and terms are commonly used in mediation and arbitration. The are provided here for informational purposes only.
Adjournment:
To suspend proceedings indefinitely or until a later stated time or place.
ADR:
An acronym for Alternative Dispute Resolution: Any method of resolving disputes outside of court and other legal channels. The most common forms of ADR are mediation and arbitration.
Alternative Dispute Resolution | ADR:
Any method of resolving disputes outside of court and other legal channels. The most common forms of ADR are mediation and arbitration.
Amendment:
A change made to an arbitration claim after it has been filed with COMA and served on the Respondent.
Appearance:
Any filing by a Party or Party’s Representative.
Arbitration:
Arbitration is a private court of equity or fairness that operates outside of the judicial-legal arena. The Arbitrator (a privately hired judge) hears and considers the verbal, written and electronic testimony & evidence from the Parties and their Witnesses. The Arbitrator then issues a binding decision called an Arbitration Award.
Arbitration Agreement:
A clause or provision in an executed contract requiring any dispute, controversy or claim arising out of the terms and conditions of the contract to be decided by a privately hired judge called an Arbitrator.
Arbitration Award:
A final decision from the appointed Arbitrator that establishes specific rights and obligations of the Parties. Arbitration is categorized under the professional field of Alternative Dispute Resolution | ADR.
Arbitrator:
An Arbitrator is a privately hired judge who decides disputes that arise out of the terms and conditions of a contract or agreement.
Arbitrator Oath & Disclosures:
The Arbitrator’s Oath & Disclosures are executed by every Arbitrator and returned to COMA prior to the Arbitrator’s attendance in hearing or decision being rendered. The purpose is to determine and declare neutrality throughout the tenure of the arbitration case. Disclosure requirements include any relationship, experience or background information that may affect, or even appear to affect, the arbitrator’s independence or ability to be impartial, or that may give rise to justifiable doubt and the parties’ belief that the arbitrator will be able to render a fair decision.
Claim:
Monetary and non-monetary demands submitted to arbitration in writing by any Party, Claimant, or Respondent including the initial claim or counter-claim. Claims must include a request for all desired outcomes; an arbitrator cannot give what a party does not request in their claim or counter-claim, as this would exceed their scope of authority. Parties are generally prohibited from adding to their claim, counter-claim, or other request for relief on the day of hearing. Choose carefully what is worth including and what can be left out.
Claim Amount:
The total value of all relief requested to include Claim Amount + Arbitration Fees + Attorney Fees, exclusive of interest.
Claimant:
Any individual or business entity who files a claim under COMA.
Counterclaim:
The total value of all relief sought by Respondent in their Arbitration Response to Claimant’s Statement of Claim. Respondents must include all requested relief, both monetary and non-monetary, in a written Statement of Counterclaim. The Arbitrator cannot give what is not asked for; that would exceed their scope of authority. Parties are generally prohibited from adding to the counterclaim or other request for relief on the day of hearing. Choose carefully what is worth including and what can be left out.
Delivery:
The formal requirement of each party to prove they have made every reasonable attempt to provide an exact copy of all submissions simultaneously to COMA, the Mediator or Arbitrator, and all named parties to a mediation or arbitration case. See Proof of Service.
Digital Signature:
A type of electronic signature that encrypts documents with digital codes, making it particularly difficult to duplicate, and utilizes mathematical techniques to validate the authenticity and integrity of a message, software or digital document or file.
Document:
Any written or electronic form or data file containing information in any form, including an agreement, record, correspondence, tape, e-mail, video, audio, computer file, electronic attachment, notice, memorandum or other writings or data compilations.
Electronic Communication:
Exchange of documents and exhibits through electronic means, in whole or in part, including any use of software, apps, email, data file sharing or other computer communication.
Entity:
Entities are established under the Secretary of State in which the organization formally registers its business dealings. An Entity may be organized into various organizational structures: Association, Business, Company, Corporation, LLC, Partnership, Sole Proprietorship that is organized. If the entity is organized in Colorado, for example, the Colorado Secretary of State’s Business Search should be referenced:
Ex Parte:
Without all Parties Present. Refers to private information sharing from one Party to COMA and/or the Arbitrator when all Parties are not present. It is prohibited as improper and unethical due to it excluding the opposing side and because it can potentially influence the Arbitrator unfairly.
Expert Witness:
An Expert Witness establishes their qualifications as a person possessing Subject Matter Expertise. The Expert testifies in arbitration as to their opinion or belief of what has happened in disputed matters based upon their specialized skills, knowledge, or experience.
Fact Witness:
Most witnesses are Fact Witnesses; they have personal knowledge of either the underlying incident or the people involved. Anyone may testify as to facts; only an expert may present opinions. Fact witnesses are usually laypersons who have little experience in the courtroom.
Interim Order:
An Order providing temporary or preliminary relief pending a final Arbitration Award.
Large Claims Arbitration>$75,000
Large Claims over $75,000 | Standard Arbitration Hearings consist of the presentation of documents, evidence, and testimony presented in a hearing attended by the Parties in person or via web conference. The necessary hearing time is determined by the Parties and established during the Initial Pre-Hearing Conference, then entered by the Arbitrator as a Scheduling Order.
Mediation:
A formal and confidential negotiation of the disputed matters. Once agreement is reached, the terms of agreement are written into a document called a Memorandum of Understanding | MOU. With the signed approval of all Parties, the MOU may be submitted to court for enforcement. Mediation is flexible and confidential. In an atmosphere of safety, many options for settlement can be explored. Because mediators cannot be subpoenaed to give testimony in court about the negotiations, there is an atmosphere of freedom throughout the process. Mediation is categorized under the professional field of Alternative Dispute Resolution | ADR.
Non-Monetary Claims:
Non-Monetary Claims generally include demands on performance such as vacating certain premises or refraining from a specific act.
Order:
A directive from the Arbitrator that establishes specific rights and obligations of the Parties.
Participation:
A Party’s attendance and/or submission of testimony, documents and evidence during an arbitration hearing which assists the Arbitrator in determining the outcome of the dispute.
Party:
Any Individual or Entity who makes or responds to an Arbitration Claim including Claimants, Respondents, Cross-claimants, and Third Parties.
Party's Witness:
An Individual or employee of an Entity who is called upon to provide testimony in an arbitration case.
Pro se:
An Individual or Entity without an attorney or legal representation. Pro se is Latin for “in one’s own behalf.”
Proof of Service:
Demonstration by a Party that they have complied with their obligation to deliver an exact copy of all submitted documents to COMA, the Arbitrator, and all parties to the case simultaneously. Proof is demonstrated by Certificate of Service or Affidavit stating how service was made (ex: Certified Mail & Delivery, service by Sheriff or Private Process, or by an individual over the age of 18 who has no interest in or affiliation with the case.)
Received:
Offered and/or accepted delivery or other effective notice from COMA, the Arbitrator, or Party at the known address of the Party, their Registered Agent, or their Attorney.
Receipt:
Certificate or proof of offered and/or accepted delivery or other effective notice from COMA, the Arbitrator, or Party at the known address of the Party, their Registered Agent, or their Attorney. May include electronic service that can be demonstrated with a Document Identification Number through an e-signature service. The Arbitrator has ultimate authority to determine proper service in an assigned case.
Representative:
One who makes an appearance in arbitration on behalf of another. Representatives may include an official of an Entity (Union Representative, Human Resource Director, or Company Officer) or an attorney. When an Individual represents themself, they are ‘pro se.’
Respondent:
An Individual or Entity against whom an Arbitration Claim is made.
Response:
A formal brief, concise answer to the Claimant’s Statement of Claim to detail the disputed transactions or events from Respondent’s perspective. State any intention to prove or demonstrate your points in defense of Claimant’s claim. Respondents may Counterclaim.
Sanctions:
Sanctions are consequences imposed by an Arbitrator during an arbitration proceeding such as shifting arbitration fees between Parties; allowing modifications to claims, counterclaims, or responses; preclusion of evidence; admission of facts; dismissal of arbitration proceedings. Sanctions may be imposed against a Party, a Representative or both.
Sign:
The act of acknowledgement using a mark created in writing or by electronic means which is produced by any reliable method intended as a Signature. Colorado has adopted the Uniform Electronic Transactions Act CRS § 24-71.3.
Standard Arbitration Hearing:
Consists of one or more pre-hearing teleconferences followed by a hearing attended in person by the Parties and their attorneys, if represented. The Arbitrator hears the physical, written & electronic testimony of the Parties and their Witnesses, examines the exhibits, deliberates the various points of the case, then issues a binding decision called an Arbitration Award.
Statement of Claim:
A formal brief, concise Statement to detail the highlights of your arbitration claim in chronological order with a requested dollar amount or other non-monetary compensation that you are seeking. An Arbitrator cannot grant something that has not been requested in the Statement of Claim; that would exceed their scope of authority. Parties are generally prohibited from adding to the claim or other request for relief on the day of hearing. Choose carefully what is worth including and what can be left out.
Small Claims Arbitration <$75,000
Small Claims Arbitration under $75,000 | Expedited Hearing via web conference consist of the presentation of electronic documents and evidence, and testimony attended by the Parties via Web Conference Hearing. A Flat Fee is offered when total combined conference and hearing time does not exceed 3 hours. The necessary hearing time is determined by the Parties and established during the Initial Pre-Hearing Conference, then entered by the Arbitrator as a Scheduling Order.
With Prejudice:
The dismissed claim cannot be refiled.
Without Prejudice:
The case has not been decided and may be brought again. The Claimant can subsequently file again against the same Respondent. The Respondent may also file a new arbitration action on the same disputed issue.