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Traditional and Nontraditional Litigation Paper

Litigation is the process bringing, maintaining, and defending a lawsuit (Cheeseman, 2010). Litigation is time consuming, difficult, and costly process requiring strict rules to be observed. Litigation uses the court system to resolve disputes between parties. Litigators are trial attorneys that represent clients. The plaintiff claims that the actions of the defendant cased harm. The alternative to litigation is nontraditional or alternative dispute resolution (ADR).  Alternative dispute resolution can be used in context of negotiation, mediation, and arbitration. The author will compare and contrast litigation to non traditional forms of alternative dispute resolution. The author will address the risks associated with litigation and how alternative dispute resolution can reduce risks.   

Litigation

Controversies that are legally authorized and decided by the court of law are called lawsuits. Litigation is when one individual or organization sues another for damages. The reason why an individual or organization enters into a lawsuit is to enforce a right or remedy an injustice. During an ongoing trial respondent, petitioners, applicants, defendants, and plaintiffs are all called litigants.  The litigants can represent themselves or hire legal counsels who are called litigators.  An experienced attorney has the knowledge of the policies, rules, and laws that govern the litigation process.  The litigation process is composed of phases to include: pleading, answer, discovery, motion, and trial. In the pleading phase a petition or complaint is served to the defendant.  The defendant files their answer and requests information regarding the case. In the discovery phase information is exchanged and reviewed. The oral discovery phase or deposition is when both parties ask each other questions that are transcribed by a court reporter. In the motion phase either party may ask for a dismissal or mediation. The last step in the litigation process is the trial when the dispute is resolved by a judge or jury.

Alternative dispute resolution (ADR)

   Alternative dispute resolution enables individuals and organizations attempt to resolve disputes without using court intervention. A negotiation helps two opposing parties to meet and settle disputes. In a negotiation the two parties control the process and the solution to the conflict. An individual or organization can use mediation to help resolve disputes between two parties. Hills (2011) stated, “Mediation involves meeting with a neutral third party who helps the parties to reach an agreement. The role of a mediator is as a facilitator rather than an adjudicator” (p.543). Mediation usually uses a trained negotiator to facilitate the meeting of the two opposing parties. Arbitration is an alternative to litigation and involves an arbitrator instead of a judge or jury. The arbitrator’s decision is final and can’t be appealed unless the arbitrator was proven to be biased. The arbitrator’s decision can be challenged if an individual files a motion to vacate within three months of the arbitrators decision.

Litigation risk

            Litigation proceeding are risky because they could have a negative impact on an individuals or organizations image.  Litigation is a costly process and can have a negative impact on an organizations bottom line. Litigation can also be aggravating and inconvenient. Court orders to produce documentation can drain resources away from an organization more profitability obligations.  The organization may loss time that could have been spent creating more profits. Confidential records may become public record hurting relations between the business and its customers. The organization maybe forced by the court to declare bankruptcy and shut down. The judge and jury may not be sympathetic to the organizations case.

Reduce risk with ADR

            The main reason to use alternative dispute resolution is to reduce risks that are associated with the litigation process. The disputes can be resolved outside of court saving the organization on legal fees. The organization doesn’t have to worry about the organizations image being tarnished through the litigation process.  Alternative dispute resolution usually is shorter than litigation because it involves only the mediator and the parties involved. The author has discussed the litigation process and the risks involved in the process. The author has discussed the alternative dispute resolution process and how it can reduce risk.

References

Cheeseman, H. R. (2010). Business Law. Legal Environment, Online Commerce, Business Ethics, and international issues. (7th ed.). New York, New York: Pearson Education.

Hills, S. (2011). Civil litigation and alternative dispute resolution. Keeping Good Companies (14447614), 63(9), 541-544.