Disputes are settled by various means every day. This paper will consider the process of traditional litigation and alternative dispute resolution in settling those disputes. Knowing the advantages and disadvantages is important when deciding what process to employ in settling a dispute. Traditional Litigation Traditional litigation can be a long and expensive process. Filing a complaint starts the process. This action will cause the courts to issue a summons to the defendant with a description of the complaint by the plaintiff.
Once the summons is received, the defendant will than answer the complaint. A court enters a judgment against the defendant if allegations are admitted. However, if the defendant denies even one some of the allegations the case will proceed through the next steps of the judicial process. The defendant may file a cross-complaint against the plaintiff. This action will initiate a need for a response from the plaintiff to answer the defendant’s allegations. This will end the pleading stages and will lead to the discovery stage.
The process of discovery begins as each side takes steps to discover information relevant for trial. Discovery can be long and tedious. Each side produces a list of documents relevant to the case. This process can be time-consuming to business owners, manager, and employees as documents are sifted through and copied. All communication flows through the lawyers of one side to the other. Depositions are requested of any parties that may have knowledge pertaining to the lawsuit.
Lawyers for present at the depositions to ensure their client’s legal rights are not violated. Each step takes time as parties are provided with sufficient time to answer each step. The discovery process allows each side to see their opponent strengths and weaknesses. Settlements may be discussed to overt a trial if one side sees there is slim chance of winning a positive verdict. The process continues as lawyers bring motions requesting summary judgments or requests to permission not to produce records requested.
Each request of a judge further delays the case and increases the fees charged by the lawyers on both sides. If a settlement continues to elude both sides, the case eventually goes to a jury to hear. Even after the jury announces their verdict, the case may not be over. The unsuccessful party has the right to appeal. Traditional litigation cases can last for years as the parties proceed through the various steps of the legal system. Alternative Dispute Resolution Alternative dispute resolution, or ADR, is another option when considering litigation.
Two of common forms of ADR are arbitration and mediation. These two processes are often confused, but they are quite different (Erickson & Bowen, 2005). Mediation provides for a person to guide both parties to a voluntary settlement. The mediator does not have authority to render an award. If both parties cannot agree on a middle ground during mediation, they still have the option of arbitration (United States Securities and Exchange Commission, 2012). Arbitration is very different from mediation.
Arbitration calls for a third party to decide the disagreement. Although arbitration is less formal than litigation in a courtroom, legal formalities are still followed. Each side submits their arguments to the arbitrator. Both parties may introduce witnesses and evidence at an arbitration hearing (Cheeseman, 2010). Binding arbitration is effective because state and federal law make undesirable awards hard to challenge (Erickson & Bowen, 2005). Conclusion – Compare and Contrast
Arbitration offers the main benefits of early finality and large cost savings. An adverse decision is often preferable to a long drawn out process with high cost. A quick resolution is also beneficial to protecting a valuable working relationship or a company reputation. Around 85% of lawsuits are resolved before going to trial (Somers, 2010). Many states are experiencing overloaded court schedules. Colorado’s courts take three or more years to process a case from time of filing through trial (Erickson & Bowen, 2005).
This situation makes arbitration solutions more desirable in many cases than traditional litigation. There are situations that still make traditional litigation desirable. Large cases in which the plaintiff does not want to risk an arbitrator’s decision or relinquish the right to contest any ruling. Deciding the process of litigation desired requires knowledge of the pros and cons of choices available.
References Cheeseman, H. R. (2010). Business law: Legal environment, online commerce, business ethics, and international issues (7th ed. ). Upper Saddle River, NJ: Pearson Prentice Hall. Erickson, D. L. , & Bowen, P. (2005). Two Alternatives to Litigation: An Introduction to Arbitration and Mediation. Dispute Resolution Journal, 60(4), 42-48. Skaff, S. (2007). Alternative Dispute Resolution. IP Litigator, 13(3), 39-41. Somers, B. (2010). Mediation provides low cost solution for dispute resolution. Fort Worth Business Press, 22(23), 14. United States Securities and Exchange Commission. (2012). Arbitration. Retrieved December 15, 2012, from http://www. sec. gov/answers/arbproc. htm