Traditional and Nontraditional Litigation Paper

Traditional and Nontraditional Litigation Paper

Whether it is a small business of a large corporation legal claims can be troublesome, time consuming and costly and often produce an end result that is not satisfactory for all parties involved. The author’s intention is to compare and contrast the traditional litigation system such as suit, answer, discovery, trial, or jury with the nontraditional forms of alternative dispute resolution (ADR) such as mediation, arbitration and negotiation. The author will also discuss the risks that businesses experience when dealing with traditional litigation as well as highlight where alternative dispute resolution (ADR) might be a more appropriate measure to reduce those risks.

Traditional Litigation System

“The process of bringing, maintaining, and defending a lawsuit is called litigation” (Cheeseman, 2010 Ch 3 pg.35) or a judicial dispute resolution because the courts are used to decide the outcome of the case. Under these system two advocates called lawyers represent their parties' positions before an impartial person or group of people usually a judge or jury where lawyers represent their clients with much zeal while remaining within the confines of the law. In this system all proceedings, from the beginning of an action up to and including a trial, are governed by complex, formal procedural rules of civil procedure.

Risks Encountered by Businesses Using Traditional Litigation

Litigation can be very difficult, lengthy and costly. In business litigation, the normal business operations of the parties involved are sometimes hindered and in order to avoid or minimize these issues, many businesses are now resorting to methods of alternative dispute resolution (ADR) and other aids to resolving disputes the most common form of which is arbitration.

Alternative Dispute Resolution (ADR)

Taking into consideration the expense and time associated with litigation, many parties choose to settle disputes by using Alternative Dispute Resolution techniques such as arbitration and mediation, mini-trial, and using a judicial referee (Cheeseman, 2010 Ch. 34 pg.44). With these techniques lawyers are not always necessary and they offer a lack of publicity.

Where ADR Might Be a More Appropriate Measure to Reduce Risks

Arbitration provide a more streamlined and expeditious resolution of business controversy and is a good source if the parties involved do not plan on having a relationship in the future. Although Arbitrators must remain neutral,