Traditional vs. Nontraditional Litigation, Essay Example

Litigation is a common occurrence in society, mainly because it is also common for two parties who do not agree on legal matters to fight out their differences in court. According to BusinessDictionary.com, litigation is the “Ultimate legal method for settling controversies or disputes between and among persons, organizations, and the State.” In other words, litigation is the process of taking legal action by resolving matters through the court system. These legal actions, which are contested in court, involve claims, disputes or other types of conflict (Friedman, 1989). There are two types of litigation: traditional and nontraditional.

Traditional Litigation

Traditional litigation involves lawsuits, and during the course of the lawsuit process basic steps are usually followed. These steps are as follows: (1) the pleadings, (2) the complaint, (3) the answer, (4) the discovery, and (5) the trial (How Does a Lawsuit Work, 2012).

The complaint is the first step in the traditional litigation process, filed in court by the plaintiff against the defendant who files an answer to the complaint. Both the complaint and the answer make up the pleadings. The next step in the process is the discovery which takes into account all case information such as evidence, depositions, motions and testimonies. Finally, the trial ends the process with a verdict being handed down for judgment (How Does a Lawsuit Work, 2012).

Traditional litigation has its positive points, but it also carries risks that may be encountered by a business or organization. For example, if a business chooses to take a legal matter to court, then its employees may be subject to being served subpoenas for testimony, and that testimony may or may not be in the best interest of the business. Additionally, risks include legal and administrative costs and being put in a negative light in the eyes of the public.

Nontraditional Litigation

Nontraditional litigation involves Alternative Dispute Resolution (ADR) practices such as mediation, arbitration, and negotiation. ADR is used to resolve disputes without taking matters to court in which disputing parties enter into valid agreements to resolve their issues. Advantages of using ADR, instead of going to court, include reduced costs and time saved. Taking matters through the court system is a lengthy and expensive process that can be avoided through the use of ADR agreements, where the disputing parties meet with an arbitrator or mediator to settle their differences in an organized fashion. The disputing parties actually have more control over the process of resolving their disputes using ADR (Friedman, 1989).

According to Shavell (1995), ADR is used when parties need to resolve disputes but do not choose to go through the court trial system. ADR methods all involve a third party “who offers an opinion or communicates information about the dispute to the disputants” (p. 1). ADR is a preferable choice to traditional litigation methods that cause disputing parties to end up in court which is associated with risks, as outlined above. With ADR, these risks are eliminated and are a more appropriate measure for business managers, in lieu of court.

Traditional/Nontraditional Litigation Compare and Contrast

In comparison, traditional litigation serves the same purpose as ADR and that is to resolve disputes. They both have specific processes that must be gone through to reach conclusions on dispute issues. In contrast, traditional litigation involves a lengthy court process; whereas, the ADR process is completed in a more controlled and scaled down environment. In addition, ADR is often preferable to traditional litigation for settling disputes, because ADR is less costly, less time consuming and less risky for the parties involved.

References

How Does a Lawsuit Work? Basic Steps in the Civil Litigation Process. (2012). Retrieved from Stoel Rives Attorneys at Law: http://www.stoel.com/showarticle.aspx?Show=963

Friedman, L. M. (1989). Litigation and Society. Annual Review of Sociology, 15, 17-29.

Shavell, S. (1995, January). Alternative Dispute Resolution: An Economic Analysis. The Journal of Legal Studies, 24.