Traditional Litigation and Alternative Dispute Resolution, Essay Example

Conflict is everywhere, and the business world is no exception. When a dispute arises there are several options that could be pursued by the parties involved (Levine, 2012). Official conflict resolution processes can be categorized as traditional litigation and non-traditional methods (arbitration, mediation, negotiation, and collaborative law) that are often collectively referred to as alternative dispute resolution (ADR). Here the term “non-traditional” does not mean that ADR is historically new, as evidence for such methods extends into the reign of the Roman Empire, and should be instead considered to indicate the perception that ADR is less common or popular (Johnson and Erickson, 2012). The two approaches are similar and different depending on the aspect of interest.

Regarding similarities between approaches, both traditional lawsuits and ADR present formally recognized methods of resolving disputes. However, the formalities tend to differ between cultures for both methods. Historical evidence indicates that theories associated with litigation (common law for instance), as well as ADR methods like mediation, have been in practice for many centuries. Additionally, in both situations, there are designated representatives for a client or clients, though they differ in professional requirements.

There are many differences between litigation and ADR. Trials associated with traditional lawsuits can be expensive and time consuming, while ADR is usually more cost and time efficient. Public image can be protected when employing ADR methods, through non-disclosure agreements and other tools, as opposed to the public scrutiny that often comes with a trial by judge and/or jury. Lawsuits take place in courtrooms and employs many people in the litigation process, but ADR can be conducted entirely online with only a few designated parties involved. The option for internet based communications provides an opportunity to avoid the subjectivity that is often found in courtroom litigation due to influences of physical presence like body language. Unlike litigation, ADR does not require a judge or jury, and often encourages the cooperation of all involved parties in order to maximize benefits (or minimize harm) to each, rather than taking the all-or-none approach. The representatives in litigation are lawyers who have specific education and regulation requirements, such as passing the bar. In contrast, ADR does not need these specialists and often employs a variety of professionals from many fields depending on the nature of the dispute.

In closing, it certainly appears that ADR offers a more private, flexible and relaxed process than traditional systems of litigation. These benefits can be appealing in many, but not all dispute resolution situations. In an obvious example, if a business believes that it has a solid case to take to trial, and the potential gains outweigh the costs, then ADR is an unlikely solution from their perspective. Similarly, ADR is not usually an option if a company or person that wishes to soil the reputation of a rival. For these reasons, upon entering into negotiations with other organizations, it is not uncommon for a business to set the terms of potential dispute resolution situations.

References

Johnson, M., & Erickson, S. (2010). ADR Techniques and Procedures Flowing Through Porous

Boundaries: Flooding the ADR Landscape and Confusing the Public. Practical Dispute Resolution, 5(1).

Levine, R. E. (2012). Using alternative dispute resolution mechanisms to resolve patent disputes. Journal of Intellectual Property Law & Practice, 7(2), 119-125.