Traditional and Non-Traditional Litigation

Conflicts, controversies and disputes, have existed in the human history for an extraordinarily long time. This led to the invention as well as development of ways of resolving these conflicts. These methods vary according to the societies and this varies groups of people. Another thing that is common with the methods of conflict resolution is the high rate at which it evolves.

Litigation refers to a lawful way of resolving conflicts between the various parties such as individuals, businesses, organizations, and governments among others. The traditional litigation system for a long time has been used to resolve conflicts using the civil court system. The key aspects that characterize the traditional litigation system include jury, trial, and discovery, among other aspects encountered in its day to day running. This system often entails the clients hiring attorney’s services in the attempt to seek justice.

The primary role of attorneys is to offer the legal advice to their clients and the client’s position in the whole procedure. This procedure happens, and it is usually done to serve justice to two parties that are against one another. During litigation system, the process of discovery is in most cases abused by either one or the both sides. A defiant person can file a lot of objections to detection requirements to deter the whole process. Moreover, the various motions are filed by either party before the trial. These are some reasons why the process of litigations can be protracted expensive and vexatious.

Apart from this classic form of dispute settlement, another method of dispute resolution has come in place. The alternative method is referred to as alternative dispute resolution (ADR). These methods try to solve some of the limitations of the traditional litigation. There are different methods of ADR that are in application today, these include; arbitration, negotiation and mediation. All of these processes are directed towards resolving conflicts.

Of all the three methods of ADR, arbitration is the most commonly used method. As discussed earlier, traditional methods usually consist of two opposing sides each trying to defend their position, on the other hand, arbitration comprises  of people or parties using an unbiased third party  to listed and make his decision of the issue. This third party is known as an arbitrator and brings up the decision that is considered binding but some time may be unbinding.

Unlike arbitration which may have more than one mediator; mediation is presided over by a single mediator whose role is not to provide judgment. The sole role of a mediator is to facilities a discussion that can lead to the conflict being resolved. Mediation has been found to be tremendously effective in conflict resolution and has been credited with reducing the cases that are taken to the courts. In addition, the decision reached is in most times viewed as the compromise between the parties and none feels aggrieved after wards. This occurs in a free environment where all parties can air out their views in from of a mediator who facilitates the reaching of a common ground.

One of the advantages of the ADR is the privacy involved. Since both parties are discussing and trying to solve their problem before their own choice of arbitrator, there are few chances that private information may fall into unintended hands. One of the advantages of traditional litigation over ADR is its ability to resole conflicts even when the parties are not willing to meet or discuss.

Many business and people avoid the traditional method of litigation because of various reasons. One reason that is mostly given by firms and individuals, as to why many of them would not primarily prefer traditional litigation, is the dominant risk people and firms are exposed to in terms of being subjected to scrutiny. The intense scrutiny of an individual, a firm or a product may have negative effects in both the short and the long rung. The scrutiny may make firms suffer monetary loss; in addition, a brand may also suffer reduced demand.

Another burden that may make civil trial tedious for many people is the burden of proof. In the ADR, the proof is in most cases not necessary   since, the parties are usually willing to come to a dialogue.  The burden of proof can be expensive and may work to aggrieve further the aggrieved. For a successful civil trial to take place, the claims done by the plaintiff must be proven and be stronger than the defendants. This makes civil trial lees preferred compared to ADR.

However, for this process to be fair the arbitrators must be neutral, the arbitrators do not have many problems attaining this because of the relaxed nature in which this occurs. This is because the process is informal, on the other hand, if these conditions are not met. The process cannot achieve the desired outcome. One of the major shortcomings of a civil legal process is its adversarial aspects; there always two parties that are defending their position.

Despite the financial investment, and the time in traditional litigation, one party wins and the other losses at the end. This discourages many people to pursue justice through this process. In contrast, ADR provides a procedure that provides a safe landing for all parties. Mediation processes do not involve winning and losing. The mediator is uses his skills to assist the two parties to come up with a favorable compromise. In this case, both parties usually seek mutually satisfactory settlement for both parties making the final product palatable to all parties.

If we consider the costs involved in traditional litigation, it makes it unaffordable to all people. The traditional litigation process has been judged as expensive and time consuming, due to this, many people has resulted in using ADR methods. Among the methods that are preferred most by people are arbitration and mediation.  Research shows that arbitration gives the people involved in conflict with smooth and speedy resolution of disagreement.