Traditional And Non-Traditional Litigation

Professor Richard Rice

Traditional and Non-Traditional Litigation

Determining the ideal methodology for resolving a business dispute can be a challenge for business. One hires an attorney and files a lawsuit requiring the other to hire an attorney and defend the lawsuit. As the number of court cases filed grows each year and the cost of litigation increases. More organizations are looking for efficient ways to settle business disputes. Many forms of traditional litigation exist in the legal system; the forms exist in the context of suit, answer, discovery, trial or jury. In addition a variety exist in the non-traditional Alternative Dispute Resolution (ADR) aspect of the legal system, the nontraditional or Alternative Dispute Resolution (ADR) aspect of the legal system forms exist in the context of as mediation, arbitration, conciliation, mini-trial, and negotiation.

After reading this paper one will find a comparison and a contrast of the traditional litigation system with the non-traditional forms of Alternative Dispute Resolution (ADR). This paper will also examine the risks that businesses and other organizations encounter when dealing with traditional litigation and where might an ADR be a more appropriate measure in order for business managers to reduce those risks.

Traditional litigation is the process of bringing, maintaining, and defending a lawsuit in a Court of Law (Cheeseman, 2010). Litigation is a formal process requiring one party to initiate litigation by filing pleading with the court. A pleading is a formal written statement filed with a court by parties in a civil action, other than a motion. By stating what claims and defenses are at issue, pleadings established the issues to be decided by the court. Many forms of traditional litigation exist in the legal system such as trial, jury and discovery. This system utilizes an adversarial system of justice that includes attorneys representing clients. Attorneys provide legal advice by representing the positions of the clients through court hearings and procedures. With this form of litigation, you never know the outcome until a judge or jury decides as well as the stress and emotional turmoil that can result during the process. Alternative dispute resolution can be much more efficient and less expensive than traditional forms of litigation.

Non-traditional ADR (Alternative Dispute Resolution) refers to any means of settling disputes outside of the courtroom. The most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. ADR including arbitration and mediation have been gaining popularity as a method to resolve some of the shortcomings of litigation.

Resolving a dispute is the desired outcome of traditional litigation and non-traditional litigation. Plaintiffs and defendants are typically represented by attorneys in both forms of litigation. Another similarity between traditional litigation and ADR is a third party who typically decides the outcome of the dispute. In traditional form of dispute resolution, the dispute is decided by a judge or jury. As for ADR disputes, the third party can be an arbitrator, mediator, judicial referee, or conciliator depending on which ADR technique us used. (Cheeseman, 2010).

While the primary goal of both judicial and alternative