Traditional Litigation vs. Non-Traditional ADR

Leslie Brown

LAW/531

November 27, 2012
Ruth Astle

Traditional Litigation vs. Non-Traditional ADR

In business taking the appropriate course of actions to settle conflicting business disputes can be challenging, depending on the company’s cash-flow. When a company is looking at their options for either traditional litigation or non-traditional ADR management they will need to look at both options closely to see which path is the best for the company legally, financially, and what option would not damage the company reputation. A traditional litigation system consists of a party filing a complaint in court. An authorized official with a copy of the compliant and jury summons will serve the defendant. A filing of the Complaint and Answer is processed to transition into discovery. Because the discovery process clearly defines the issues in the dispute prior to a trial this will alleviate potential surprises. This discovery phase is under court supervision and at this time both parties can exchange documents. In the pre-trial phase when there is a filing it can have a negative effect on the litigation. The plaintiffs will need to prove their case by a preponderance of evidence. At this time the jury will review the credibility of witnesses, and evidence in making a decision if the plaintiff has met a burden of proof. Some disadvantages and risk of the traditional litigation process is that while in the discovery process different objections will be present, which requires intervention of the courts, and this is a public process. There is a risk that something someone says could result in a lawsuit to the company, and the company can get a bad reputation depending on what the parties discloses. This method of conflict resolution is expensive, and exasperating. However, an alternative to going through the traditional litigation system would be to use the non-traditional alternative dispute resolution such as negotiation, mediation, conciliation or arbitration. The negotiation process is where parties try to settle their disputes voluntarily; this can take place before and after a lawsuit, and before other alternative dispute resolutions are selected. The mediation process is where a third party assists parties in reaching the settlement of the dispute. However, the mediator does not make any decisions or awards like an arbitrator. The best way to use mediation occurs