Traditional litigation and nontraditional Alternative Dispute Resolution both seek to settle disputes however litigation is more costly than ADR. Therefore, plaintiffs should consider the use of ADR before requesting a trial. Traditional Litigation Parties may pursue ADR, as well as, traditional litigation in trying to resolve a dispute however the latter is more complex and costly. The traditional litigation system is the process of bringing, maintaining, and defending a lawsuit in a court of law. It can have many processes before a judgment is reached.
These processes include the pretrial litigation process: pleading, discovery, dismissals, pretrial judgment and settlement conference. In traditional litigation the case can be tried by judge or by jury. If the case is to be judged by a jury the process will proceed with jury selection. Then on to opening statements, the plaintiff’s case, the defendant’s case, rebuttles, closing arguments, jury instructions, jury deliberation and verdict, and finally the entry of judgment (which can be appealed). These procedures are complex, time consuming and at times very costly.
Trials can be costly in terms of Lawyer and other fees, the loss of time by key personnel, as well as other factors. Moreover, parties should consider the probability of winning or losing and the amount to be won or lost. In a study about trails vs. settlements, Randall L. Keiser says “That the clear lesson of a soon-to-be-released study of civil lawsuits has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer” (Jonathan, 2008, para. ). If the amount to be won is less than the cost of a trial then ADR may be more advantageous. Alternative Dispute Resolution Alternative Dispute Resolution offers parties a settlement to their dispute with a reduction in cost. ADR can take the form of mediation, negotiation, conciliation, mini-trial, fact-finding, and judicial referee. Much like traditional litigation, each form of ADR involves some form of discovery such as depositions, interrogatories, and production of documents.
In mediation the mediator will discuss facts of the case, as well as, strengths and weaknesses with each party and will propose a settlement. In Negotiations the lawyer will provide information as to the strengths and weakness of the case which aids in offers and counter offers. In Arbitrations “the parties can call witnesses to give testimony and introduce evidence to support their case and refute the other side’s case” (Henry R. Cheeseman, 2012, p. 45). The objective is to have a fair hearing without the stress and cost of a trial. Finally
ADR is an effective way to settle disputes as it offers some of the same benefits as traditional litigation without the associated cost. “Research indicates that if successfully implemented, ADR can reduce the cost of litigation, both in terms of cash outlays and time. It also can free key employees from the emotional and time-consuming administrative drain of supporting the litigation”(L’Heureux, Hopper, & Long, 1997, para. 5). Some cases may be better heard by a judge or jury in a court of law, however if he cost outweighs what is to be won than ADR is a better alternative.
Henry R. Cheeseman. (2010). Business Law. Legal Environment, Online Commerce, Business Ethics, and International Issues, Seventh Edition. Retrieved from University Of Phoenix, Business Law 531 website L’Heureux, R.,A., Hopper, P. F., & Long, A. (1997). Disputes resolutions: What does it take to succeed with ADR? National Contract Management Journal, 28(2), 11-11. Retrieved from http://search.proquest.com/docview/223323276?accountid=35812