Traditional and Non Traditional Litigation
The purpose of this paper is to compare and contrast the traditional litigation system with the nontraditional forms of Alternative Dispute Resolution (ADR). Traditional Litigation is defined as “The process of bringing, maintaining, and defending a lawsuit is called litigation. This is also called judicial dispute resolution because courts are used to decide the case.”
Alternative Dispute Resolution (ADR) is defined as “methods of resolving disputes other than litigation.” By far the most common form of ADR is arbitration, however other types of ADR exist such as negotiation, mediation, conciliation, mini-trial, fact-finding, and the use of a judicial referee. “ Negotiation is a procedure whereby the parties to a dispute engage in negotiations to try to reach a voluntary settlement of their dispute.” Mediation is another type of negation in which all parties involved in the issue ...view middle of the document...
The Mini-Trial is private voluntary proceeding where the disputing parties hire a neutral third party legal expert to preside over the mini-trial. Then counsel for both sides of the matter is allowed to present an arbitrated version of their case. During this hearing both parties get to see the strengths and weaknesses of both sides in the matter. Upon the presentation of the facts in the matter by opposing parties, the legal expert is asked to render an opinion regarding how a court would have ruled in this matter.
Fact-Finding is another method used to solve disputes. Disputing parties use a neutral third party to conduct a fact-finding investigation into the matter at hand. Unlike the neutral third party in the aforementioned forms of ADR, this person will have the authorized to investigate the matter at hand for the purpose of gather evidence, prepare demonstrative evidence, and conclude by submitting a report of the findings to both parties in the matter.
Judicial-Referee is a method used if all parties to the matter agree, the court may appoint a judicial referee to conduct a private trial and render a judgment.
What are the risks encountered when dealing with traditional litigation? In today’s profit driven business environment in which companies really watch the bottom line. Most business do not risk using the court system to resolve disputes because the cost of legal fees could easily run into the millions of dollars. To solve these problems business are turning to ADR to resolve these disputes.
What circumstances might ADR be more appropriate for a business to reduce its risks?
In my opinion, I believe ADR to be appropriate under all circumstances. One would be hard press to find a business agreement in use today that does not contain a dispute clause that states in the event of a dispute all parties agree to use ADR to settle the case before proceeding with any legal action. ADR serves as a much briefer process and far less costly for all parties involved.
Business Law: Legal Environment, Online Commerce, Business Ethics, and International.