Running head: TRADITIONAL AND NONTRADITIONAL LITIGATION

Traditional and Nontraditional Litigation Amy Seymour LAW/531 October 25, 2011 Instructor Name

TRADITIONAL AND NONTRADITIONAL LITIGATION Traditional and Nontraditional Litigation Most cases will never go to trial, so understanding alternative methods of dispute

resolution is just as important as understanding the traditional litigation system. The goal of both traditional and nontraditional litigation is to reach a resolution, but the methods used to reach a resolution are different. The purpose of this paper is to compare and contrast the traditional litigation system with nontraditional forms of alternative dispute resolution (ADR). Compare Cheeseman (2010) defines litigation as the process of bringing, maintaining, and defending a lawsuit (p. 35). Resolving a dispute is the desired outcome of traditional litigation or judicial dispute resolution and nontraditional litigation or ADR. While not necessary, plaintiffs and defendants are typical represented by attorneys in both forms of litigation. In addition, a third party typically decides the outcome of the dispute. For judicial dispute resolution, the dispute is decided by a judge or jury. In ADR a third party typically helps the parties come to a resolution or makes a decision regarding the dispute. This third party can be an arbitrator, mediator, judicial referee, or conciliator depending on the method of ADR used (Cheeseman, 2010). Contrast While the ultimate goal of both judicial and alternative dispute resolution is the same, the methods to achieve resolution are different. The judicial litigation process is time-consuming and expensive. Even before a case goes to trial, it must go through a lengthy pretrial litigation process which includes pleadings, discovery, dismissals and pretrial judgments, and settlement conference (Cheeseman, 2010, p. 35). If a case is not dismissed or settled during the pretrial process it will go to trial, which can last a day or several months depending on the nature of the

TRADITIONAL AND NONTRADITIONAL LITIGATION dispute. The trial process consists of jury selection, if either party requests one, opening statements, the plaintiffs case, the defendants case, rebuttal and rejoinder, closing arguments, jury instructions, jury deliberation and verdict, and entry of judgment (Cheeseman, 2010). In contrast, ADR is generally a much quicker process, with a number of different methods that can be used to resolve a dispute (Cheeseman, 2010). Additionally, a study of civil cases handled by Assistant United States Attorneys (AUSAs) showed that 65% of cases settled

when ADR was used compared to 29% when ADR was not used (Bingham, Nabatchi, Senger, & Jackman, 2009). ADR also saved AUSAs in litigation expenses and hours preparing. Bingham et al. (2009) also concluded that the outcome of disputes settled using ADR were not significantly different from cases settled using traditional litigation. Generally negotiation is the first method of ADR used, and many courts required that the parties involved in a lawsuit try to settle prior to going to trial. While no third party is used during negotiation, a judge does review the case if a settlement is not reached before consenting to a trial (Cheeseman, 2010). Arbitration is another form of ADR, which involved the parties choosing an impartial third party, called an arbitrator, to hear the case and make a decision (Cheeseman, 2010). Mediation is another form of ADR. A neutral third party, called a mediator, is agreed upon by both parties, but unlike in Arbitration, the mediator does not make a decision to resolve the dispute. Instead the mediator helps facilitate settlement (Cheeseman, 2010). Conciliation is another form of ADR. Much like a mediator, a conciliator does not make a decision in the dispute. However, a conciliator is used when the parties involved in the case do not want to face each other (Cheeseman, 2010). Other forms of ADR include mini-trial, fact-finding, and judicial referee (Cheeseman, 2010).

TRADITIONAL AND NONTRADITIONAL LITIGATION Conclusion

Traditional and nontraditional methods of litigation are both effecting in solving disputes, and usually use a neutral third party to help resolve the dispute. However, nontraditional litigation or ADR gives both parties more options for reaching a settlement. In addition ADR is generally a quicker a cheaper process for reaching an agreement. This paper included a comparison and contrast of traditional and nontraditional forms of litigation, as well as an explanation of the different types of ADR that can be used to settle a case.

TRADITIONAL AND NONTRADITIONAL LITIGATION References Cheeseman, H.R. (2010). Business law: Legal environment, online commerce, business ethics, and international issues (7th ed.). Upper Saddle River, NJ: Pearson Prentice Hall. Bingham, L. B., Nabatchi, T., Senger, J. M., & Jackman, M. S. (2009). Dispute resolution and the vanishing trial: Comparing federal government litigation and ADR outcomes. Ohio State Journal on Dispute Resolution, 24(2), 225-262. Retrieved from Academic Search Complete.