Even though there are differences between the traditional litigation system and the nontraditional forms of ADR there is situations that call for both types of these litigation systems to be used in conjunction with each other. The following document compares and contrasts the traditional litigation system and the nontraditional forms of ADR. The document also examines the risks that businesses encounter when dealing with traditional litigation and when ADR might be a more appropriate measure in order for business mangers to reduce those risks.
Traditional Litigation One of the main similarities of the traditional litigation system and the nontraditional forms of ADR consists of the common objective to resolve an issue between two parties. The traditional and nontraditional litigation systems require representation by an attorney or a mediator. Occasionally a mediator or an arbitrator is needed for both situations. An array of traditional and nontraditional litigations forms exists depending on the circumstances of the case. Traditional litigation systems involve suit, answer, discovery, trial, and jury.
According to Barron, (2013) “The traditional litigation system, the civil suit officially commences with the filing of a complaint in court by the plaintiff” (para. 2).
The defendant has 21 days from the time which he or she is served the summons to file an answer to the plaintiff. Answer An answer is when the defendant serves and responds back to the plaintiff in writing. According to Cheeseman, (2010) “In the answer, the defendant admits or denies the allegations contained in the plaintiff’s complaint” (p. 35).
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If the defendant denies these allegations then the case continues on. Discovery After the complaint and answer have been filed with the court a discovery will be executed. According to Cheeseman, (2010) “During discovery, each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial” (p. 38).
The discovery is performed with the court’s supervision and the parties involved voluntarily exchange documents and information related to the issues in the suit.
Both parties use the discovery process to help them prepare for the trial, protect evidence, save time, and settle the case. Trial The plaintiff and the defendant have the right to a fair jury trial conducted in the federal court. The parties submit to the judge a trial brief that involves legal arguments for each of them regarding the case. The jury acquires the facts in the trial. According to Barron, (2013) “The jury assesses the credibility of witnesses and makes a determination of whether the plaintiff has met the burden of proof” (para. ).
Jury The jurors are required and are selected to speak and seek out the truth in every case they are involved in. The attorneys for the plaintiff and the defendant are permitted to ask potential jurors questions to establish if the individual would be biased with their decisions. After the jury is selected the individuals swear in and the trial is ready to start. Risks of Traditional Litigation There are several risks businesses encounter when dealing with traditional litigation.
According to Foster, (2013) “Lawyers’ fees alone can be substantial for a business engaged in an ongoing lawsuit, but businesses must also worry about the time spent preparing for a suit, the emotional toll of long-term litigation, and the eventual risk to the business of a substantial monetary loss” (para. 1).
Losing is always a risk when using traditional litigation. Other risks are loss of trading secrets or proprietary information, and a bad reputation for the organization. Nontraditional Litigation of ADR
The Essay on Litigation Process Trial Parties Case
... Litigation Settlement A settlement can be discussed by any party at any time during litigation and is often a less expensive's alternative to trial. Arbitration ... shortly before trial. During discovery, the parties ask for information about the facts and issues of the case. Information ... weaknesses of each side's case. The mediator helps the parties identify the risks of the case and encourages them to ...
According to Barron, (2013) “Because the expense and time-consuming nature of litigation, many parties elect to settle disputes by using ADR techniques such as arbitration and mediation” (para. 4).
Other methods of ADR are negotiation, conciliation, mini-trial, fact-finding, and using a judicial referee. Arbitration Arbitration is commonly used by most businesses. With arbitration the parties involved selects an impartial third party to listen to both sides and determines an award to the dispute. The rules of arbitration are similar to the discovery process of traditional litigation.
According to Cheeseman, (2010) “At the arbitration, the parties can call witnesses to give testimony, introduce evidence to support their case, and refute the other side’s case” (p. 45).
Binding arbitration is when both parties agree prior to the procedure to bind the resolution and award made by the arbitrator that cannot be appealed by the court. Mediation According to Barron, (2013) “Mediation is a process where the mediator uses conflict-resolution skills, and actively encourages the parties to reach a compromise or mutually satisfactory settlement without recourse to the court system” (para. ).
The mediator helps both parties to discuss the case by stressing the strengths and weaknesses of each side of the case offering opinions about the settlement. The mediator then sets up separate meetings with each party to discuss settlement offers for both sides. According to Cheeseman, (2010) “If the parties agree to a settlement, a settlement agreement is drafted that expresses their agreement and this ends the dispute” (p. 45).
If both parties cannot agree on a settlement they may hoose to seek judicial resolution within the traditional litigation system. Negotiation Similar to traditional litigation, “in a negotiation, the parties, are often represented by attorneys, who negotiate with each other to try to reach an agreeable solution to their dispute” (p. 44).
Negotiations may either occur prior to filing the suit or after. Negotiations may also be used first before using other methods of ADR. With negotiations both parties draft settlement offers and counteroffers.
The Essay on Traditional Litigation vs. Adr
Both have many benefits and both have drawbacks, however it is the civil dispute that should determine which is the most beneficial. Traditional Litigation Traditional litigation is a legal method for settling disputes between parties such as: people, organizations, and the State. During the process of litigation a case, also known as a lawsuit, is carried before a court of law that has ...
Another similarity between negotiation and traditional litigation is attorneys may acquire information to help settle the dispute. Using ADR to Reduce Risks ADR can alleviate and reduce numerous risks to help companies and managers resolve disputes other than using the traditional litigation system. Some methods of ADR may be quicker than using the traditional litigation system. The company may arrange mediation actions sooner than waiting for a court hearing. The traditional litigation system may risk making a bad situation worse for both parties.
It could position one side against the other where there is a winner and a loser. By using the appropriate ADR to resolve the issue businesses can help preserve a continuous working relationship with the other company. ADR is also financially cheaper than taking a lawsuit to court. The costs of ADR options may differ depending on the circumstance and the types used, but most are low-cost. With some forms of ADR each party involved may pay their own costs of the ADR. Unlike traditional litigation where the losing company must pay the other party’s costs.
Conclusion When a business has a legal dispute there are two ways they can resolve the issue traditional litigation and nontraditional forms of ADR. The traditional litigation system and the nontraditional forms of ADR have several similarities as well as differences. Which ever system the business chooses to use there is advantages and disadvantages to each litigation process. Business mangers must asses the risks involved and choose the appropriate litigation procedure to resolve the dispute.
References Barron, J. (2013).
What is the Meaning of Traditional Litigation. Retrieved from http://www. ehow. com/about_6521858_meaning-traditional-litigation-system_. html Cheeseman, H. R. (2010).
Business law: Legal environment, online commerce, business ethics, and international issues (7th ed. ).
Upper Saddle River, NJ: Prentice Hall. Foster, W. (2013).
Business Risks of Traditional Litigation. Retrieved from http://www. ehow. com/info_8488645_business-risks-traditional-litigation. html
