Traditional and Nontraditional Litigation
Susan Maynard
LAW/531
May 5, 2013
Bob Houle
Traditional and Nontraditional Litigation The traditional litigation system and the nontraditional forms of the alternative dispute resolutions (ADR) have several similarities as well as differences. There are numerous legal processes available to companies to resolve disputes other than using the traditional litigation system such as arbitration, negotiation, mediation, conciliation, mini-trial, fact-finding, and a judicial referee. Even though there are differences between the traditional litigation system and the nontraditional forms of ADR there is situations that call
…show more content…
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 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. 5).
Alternative Dispute Resolution (ADR) is an increasingly popular option that allows people to resolve disputes outside of court in a cooperative manner. ADR can be faster, cheaper and less stressful than going to court. [Most importantly, the use of ADR can provide greater satisfaction with the way disputes are resolved. ADR has been gradually evolving within the Fresno Superior Court for the past several years. In 1999 the Court recognized a need for greater public access to dispute resolution for cases and established an ADR Department. This
Arbitration: This is an argumentative proceeding in which the parties choose an arbitrator or neutral third party to resolve the dispute. The process is less formal than the court room proceeding.
Negotiation, mediation, and arbitration are all forms of Alternative Dispute Resolution (ADR) that are alternatives that organizations use to avoid litigation in court. According to Valenti Law, negotiation and mediation are forms of non-binding ADR, while arbitration is a binding ADR (2011). Since arbitration is a binding ADR, the arbitrator’s decisions are legally binding and cannot be challenged by either party in the arbitration. “There are limited grounds for challenging the decision” (Valenti Law, 2011).
As litigation continues to be a time-wasting, costly, distracted, and unsatisfactory practice for dispute resolution, alternative dispute resolution increases in popularity, specifically, mediation and arbitration. Arbitration is a cost efficient substitute to litigation that is the yielding of a dispute to an impartial party in order to receive a final incumbent decision in the form of an award. Arbitration is sensitive, classified, and modeled to be a swift, and inexpensive solution to dispute. Participating parties may include additional terms in the agreement identifying arrangements to their agreements’ arbitration clauses to meet the requirements of their discrete dispute. In summation, arbitration is process that is private, speedy, cost efficient, and customized to the liking of the parties involved.
The arbitration method consists of the selection of an impartial third party called an arbitrator that will hear and decide on the dispute. In the case of AMF v. Brunswick the ruling was that the parties were required to seek arbitration for their dispute.
Alternative dispute resolution (ADR) is the term used to describe the resolution of disputes inside or outside the legal system, without formal adjudication. It includes arbitration, mediation, conciliation and negotiation. There are problems associated with going to court. These include the adversarial process used to find a winner and loser, which often creates stress for, and increases the division between litigants. The advantages associated with the use of ADR have prompted a debate whether Parliament should make it compulsory for all litigants to first use ADR before they go to court to seek solutions to their differences.
Alternative Dispute Resolutions (ADR) is any method of resolving disputes other than by litigation. Public courts may be asked to review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them. The two major forms of ADR are arbitration and mediation; but we can also
Mediation is usually initiated when parties can no longer handle the conflict on their own and when the only means of resolution appears to involve impartial third-party assistance.
Nevertheless, certain categories of ADR have been named and understood to involve the use of particular means and methods to produce the desired end result. These procedures include: negotiation, mediation, arbitration, med-arb, early neutral evaluation, settlement conference and conciliation to name a few. However this essay will concentrate on mediation as a form of alternative dispute resolution.
Alternative dispute resolution is a large, diverse, and highly innovative field. However, in Australia it remains largely under utilised and often idiosyncratic. Alternative dispute resolution is commonly understood as any method of resolving disputes outside of traditional adjudication. Some well known methods of alternative dispute resolution include mediation, arbitration, and negotiation. Online dispute resolution is a newer, less well known method of alternate dispute resolution. Over the last decade in Australia, online dispute resolution has grown in popularity.
ADR is used to settle arguments outside of the courtroom. ADR typically includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. Court systems are getting busier and busier, and court dockets are bloated with frivolous, time-wasting, cases that can be arbitrated outside of the court. Courts are known for not being very efficient and usually come with copious amounts of delays. Rising costs of litigation continue to be a detriment to litigants. So with these shortcomings becoming common knowledge within some states, more states have begun experimenting with ADR programs. Some of these programs are voluntary; others are mandatory (n.a., 2015). Within ADR, the two most common methods are arbitration and mediation while negotiation is almost always attempted first to resolve a
The middle ground that bridges an informal settlement and a lawsuit are alternative resolution procedures, such as mediation and arbitration
ADR which stands for alternative dispute resolution can be very effective and cheaper means of resolving disputes over litigation. Apparently not all situations will be advisable to apply ADR. A situation that I will employ ADR over litigation is a business circumstances that a supplier failed to meet up with his contract obligation. This supplier did not only delivery the products late, but also sent the wrong products. As a result, my company lost hundreds of thousands in cash benefit. Using ADR over litigation to settle this dispute will certainly pay off as both parties might come out victorious and continue with their business
ADR is useful in resolving virtually all genres of disputes by providing speedier, enforceable decisions through Arbitration, Mediation, Early Neutral Evaluation and other hybrid mechanisms. The presence of cost-effective and predictable ADR mechanisms capable of resolving complex disputes help to bolster the confidence of litigants within the country and therefore stimulates trade and investment both internationally and locally.
With all of these acts and statutes being passed, it seemed as though arbitration was the way to go. But as more and more agreements to arbitrate future disputes were executed, other nonarbitral forms of alternative dispute resolution such as mediation and neutral fact-finding became common.