Law 531: Business Law
December 18th, 2012
Instructor: John Gibson
Nontraditional and Traditional Litigation
The purpose of this assignment is to compare and contrast the traditional litigation system with the nontraditional forms of ADR (Alternative Dispute Resolution).
The traditional litigation system is a case brought into court to enforce a right. It involves a plaintiff, a defendant, a judge, and sometimes a jury. The plaintiff has an allegation of wrongdoing against the defendant. If every avenue has exhausted and there is no resolution, the case goes to trial. The first step is the discovery process. The courts send out a questionnaire to the defendant asking for information on the plaintiffs’ allegation. This could take weeks to get the information. The next step is to meet into a settlement conference. Here, both parties can settle the allegation or move onto the trial phase. During this trial phase, a judge and sometimes a jury will listen to evidence from both parties on the allegation. Once all evidence has been presented, the court and the jury make the final decision. When the final decision is made, the losing party has the opportunity to appeal the decision of the court in a specified time frame.
Nontraditional ADR (Alternative Dispute Resolution) has become more popular in solving disputes then the traditional litigation system. Many legal practitioners are involved in the ADR process and there is no legal or professional requirement for the ADR practitioner to be legally qualified or to be a member of the bar or the law society. Those who engage in ADR practice are experts in fields like architects, builders, civil engineers, mariners, scientists, and social workers. ADR representatives have a thorough understanding of the ADR process and knowledge of the law. Many in house legal experts in large corporate organizations will take part in ADR process without using the traditional legal system, in order to cut costs tremendously. Many people like to use ADR processes instead of the traditional litigation system because they understand their business and can dispute and assist them and their concerns. Assurance that the outcome will not be based on legal technicalities but understand the technical details which many lawyers do not fully comprehend is what ADR representatives specialize in.
Mediation is the fastest, most flexible, and most cost-effective form of ADR. Mediation is a voluntary, non-binding process. A trained third party mediator’s goal is to bring the parties to a binding or non-binding settlement agreement. If the mediation ends in a binding agreement by both sides, the agreement will be enforced, simple and quick, by the courts. If either of the parties is not happy with the mediation or the process, the party can terminate the process. The party can then proceed with the traditional litigation system. In the traditional litigation system it leads to a winner takes all decision. There is little room for compromise and sometimes justice is not done. This system allows one of the parties to be upset with the system. In mediation, the parties are in charge of the dispute resolution process. The advantages of mediation are speed of the dispute, savings in cost, better communication between both parties, informal process, and produce a fair outcome.
“The popularity of ADR has grown steadily over the years with almost 90% of all cases resolved through some form of ADR before trial” (Harms, 2011). The traditional litigation system has a formal process, slower process, is more expensive, the case is heard before a judge, you receive a judgment that is enforceable through the court system. The average lawsuit takes about two years to resolve in court. In arbitration it is shorter, usually five to six months.
ADR makes sense instead of the traditional litigation system if the parties have…