Nontraditonal and Traditional Litigation

Nontraditional and Traditional Litigation Paper

Business Law, LAW/531

October 29, 2012

Traditional and Nontraditional Litigation

Traditional Litigation procedure is to carry, maintain, and defend a lawsuit. The word litigation is known to be time consuming, difficult, and costly process requiring strict rules, and must be observed. Litigation is used in the court systems to resolve disputes between parties. The litigators are trial attorney 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 uses the context of negotiation, mediation, and arbitration. The intent of this paper is to compare traditional litigation and contrast to nontraditional forms of alternative dispute resolution. The risks that business and other organizations encounter when dealing with traditional litigation. Finally, ADR be a more appropriate measure in order for business managers to reduce those risks.

Compare Traditional Litigation

The traditional litigation controversies are legally authorized and decided by the court of law is called lawsuits. Litigation occurs when one individual or organization sues another for damages. The reason for an individual or organization enters into a lawsuit is to enforce a right or remedy an injustice. During an ongoing trail respondent, petitioners, applicant, defendants, and plaintiffs are called litigants.

The litigation process is composed of phases to include: pleading, answer, discovery, motion, and trail. In the pleading phase a petition or complaint is served to the defendant. The defendant files his or her answer and request information regarding the case. In the discovery phase information is exchanged and reviewed. The oral discovery phase or deposition of both parties asks each other questions are transcribed by a court reporter. In the motion phase either party may ask for a dismissal or mediation. The last step in the traditional litigation process is the trial when the dispute is resolved by a judge or jury.

Contrast Nontraditional Form of Alternative Dispute Resolution (ADR)

Nontraditional form of 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. The individual or organization can use mediation to help resolve dispute between two parties.

Mediation involves meeting with a neutral third party who helps the parties to reach an agreement. Hill (2011), states "the mediator's role and function as a facilitator rather than an adjudicator" (p. 543). Arbitration is an alternative to litigation and involves an arbitrator instead of a judge or jury. The arbitrator's decision is final and cannot 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.

The Litigation Risk

The litigation proceeding are risky because it could have a negative impact on an individual or organizations image. Litigation is a costly process and can have a negative impact on an organizations bottom line. Further, litigation also can be aggravating and inconvenient. The court orders to produce documentation can drain more resources away from organization profitability obligations.

The organization may lose 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 may be forced by the court to declare bankruptcy and shut down. The judge and jury may not be sympathetic to the organization case.

Alternative Dispute Resolution to Reduce Risk

The reason to use alternative dispute resolution is to reduce risks that are associated with the litigation process. The disputes can be resolved outside the court saving the organization on legal fees. The organization does not have to worry about the organizations image tarnished through the litigation process. Alternative dispute resolution usually is shorter than litigation because it involves only the mediator and the parties involved. Although, this is due, in large measure because the substantial inherent flexibility of the various ADR procedures.

Conclusion

The traditional litigants can represent themselves or hire legal counsels known as litigators. Nontraditional form of alternative dispute resolution enables individuals and organizations attempt to resolve disputes without using court intervention. Finally, litigation proceeding are risky because they could have a negative impact on an individuals or organization's image. The reason to use alternative dispute resolution is to reduce risks that are associated with the litigation process.