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Difference Between Litigation and ADR

The document discusses the differences between litigation and alternative dispute resolution. Litigation involves resolving disputes through the court system, while alternative dispute resolution uses methods like negotiation and mediation. The document provides details on the features and considerations of both litigation and alternative dispute resolution.

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sayan chowdhury
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37 views6 pages

Difference Between Litigation and ADR

The document discusses the differences between litigation and alternative dispute resolution. Litigation involves resolving disputes through the court system, while alternative dispute resolution uses methods like negotiation and mediation. The document provides details on the features and considerations of both litigation and alternative dispute resolution.

Uploaded by

sayan chowdhury
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Difference between litigation and ADR

Litigation is the Court method of resolving a dispute where a judge


decides the case. Arbitration and mediation are both forms of Alternative
Dispute Resolution (known as 'ADR'). Alternative dispute resolution is any
means used to resolve a conflict other than through litigation. Examples
include negotiation, facilitated discussion and mediation.

Features:-

 Allows for a custom-made win-win outcome on all or part of the


issues

 Focuses on consensus-building and is future-oriented


 Aims to determine the parties' interests
 Involves the participation of a neutral and impartial alternative
dispute resolution practitioner, selected or agreed upon by all parties,
to facilitate participants' negotiations and discussions
 Voluntary participation, except where court-appointed, and
participants can withdraw from process at any stage
 Usually informal, less structured and flexible
 Emphasizes mutuality over self-interest and reconciliation over
termination

Considerations

 Parties actively participate in the process, define the issues and retain
control of the outcome; they have the final say, not the alternative
dispute resolution practitioner
 Discussions, negotiations and documentation are confidential, unless
otherwise required by law, and do not form part of the public record
 Allows for direct communication between participants in a non-
confrontational setting to identify the true issues and cause of the
dispute
 Each party has the opportunity to describe the situation from his or
her perspective, needs and interests without the restrictions of the
civil rules
 Requires commitment; outcome also requires good-faith participation
by all participants; time and money will be wasted if the intention to
collaborate is not present
 Alternative dispute resolution process can be scheduled at the
convenience of participants and practitioner
 Allows for creative discussion of options and a wider range of
possible outcomes, such as better understanding of others'
perspective and change in practice or process
 Outcome depends on settlement authority of the participants
 Allows for the preservation of business relationships

Litigation
Litigation is the act or process of bringing about or contesting a claim (that
is, using the traditional court system).

features

 May result in an “all-or-nothing” decision


 Focuses on the facts and is past-oriented
 Aims to determine the parties' legal rights
 Determines winners and losers
 Usually involves a judge who is appointed by the court to determine
the outcome based on the law and legal precedents
 Mandatory participation once legal action is initiated
 Formalized and highly structured
 Costly and long delays

Considerations

 Communication usually occurs through lawyers


 Results cannot be predicted; responsibility for decision rests with a
court-appointed third party
 Decisions rendered can act as precedent in future similar cases
 Provides public record of evidence and a decision supported by
reasons that may be subject to appeal
 Usually requires more resources (more costly, more witnesses, experts
and preparation time) and a longer wait time for resolution
 When quick action is necessary, the courts can provide emergency
rulings, such as injunctions, which are not always possible in
alternative dispute resolution processes
 Ensures a decision; even in cases where the dispute involves a non-
negotiable issue
 Focuses on determining what is legal and what is not
 Provides authority on issues that involve a breach of law or statute
interpretation
 Ideal for cases that have implications for a wide range of individuals
outside of the immediate localized dispute or where parties want to
have a third party be responsible for the decision

he advantages of all forms of ADR over litigation are: flexibility, speed,


less stress and lower cost. You can also use some ADR schemes in
addition to court or a tribunal.

Litigation is generally thought of as the process of resolving rights-based


disputes through the court system, from filing a law suit through
arguments on legal motions, a discovery phase involving formal exchange
of information, courtroom trial and appeal. Litigation also encompasses
administrative or regulatory processes for establishing legal rights and
resolving disputes. Even if you do not plan to be a litigator, some
familiarity with the litigation process will help you advise clients on how
best to avoid disputes regarding legal rights.

Many legal disputes are resolved through direct negotiation, often based
on a lawyer's advice, but without formally filing a claim to commence
litigation.  In fact, only a small percentage of litigated cases proceed
through trial. Most are settled through negotiation, mediation, arbitration
or other forms of alternative dispute resolution (ADR). In mediation, a
neutral mediator assists the parties' efforts to reach a settlement, but
does not have binding decision-making power.  Arbitration is a relatively
informal adjudicative process in which the arbitrator's decision is usually
binding. A wide range of contracts include mandatory mediation or
arbitration provisions and many court-related programs offer one or
more forms of ADR.

Students in litigation and ADR practice should gain a thorough


understanding of these processes, as well as grounding in the skills
required for becoming an effective advocate.

Process is insufficient without substantive legal knowledge. Thus, students


are advised to take classes in the substantive legal areas in which they
intend to practice. However, the good news is that litigators can also be
generalists, and a well-rounded legal education will serve them well.

Academics

Cincinnati Law students build a foundation in litigation and alternative


dispute resolution by taking Civil Procedure, Legal Research and Writing,
and Advocacy in their first year. Those interested in trial practice are
advised to try out for the trial practice team at the end of their first year.

In the second year, students take Client Counseling to learn basic skills in
interacting with clients, an important aspect of solving problems and
handling disputes. (Client Counseling is required, but future litigators or
ADR practitioners are advised to take the Client Counseling course
focused on the disputes context.) Second year students may be eligible
for the Trial Practice competition team and course in the fall or the spring
semester Trial Practice course.

Of course, in the second and third year, students are advised to take
many of the courses in litigation, negotiation, ADR, arbitration, and
decision analysis.

Students are encouraged to meet with our faculty and Center for
Professional Development staff to develop a plan best suited to their
goals
Experiences

Cincinnati Law offers students many opportunities to supplement its


rigorous curriculum and build skills in litigation, mediation, negotiation,
and dispute resolution. These simulated and real-world experiences are
invaluable for preparing students to practice as litigators and ADR
practitioners.

UC Law a participates in the American Bar Association sponsored


competitions in Negotiation and other transactional or subject matter
specific negotiation competitions. Of course, participation in the Trial
Practice Team national and regional competitions similarly prepares
Cincinnati Law students for the courtroom.

Because writing is central to this area of the law, students should use
every opportunity to improve and practice their writing and advocacy
skills. Any of the Cincinnati Law clinics and journals will give students
opportunities to improve and practice these skills.

Judicial externships with the U.S. District Court, the Ohio Court of
Common Pleas, or other courts with criminal jurisdiction are valuable.
Students also can take advantage of legal externships with a prosecutor
or defense organization or the Sixth Circuit Mediation Office.

Third-year students who have completed at least 60 credit hours toward


graduation can obtain an intern’s license, allowing them to practice in
court under the supervision of a prosecutor or defense lawyer. For
example, the  allows supervised third-year law students to represent
clients charged with misdemeanors and felonies in Hamilton County.
Students also can work part-time in their second and third years in
litigation practice at many of the 800 law firms located in the Cincinnati
area.

Volunteer opportunities are available at organizations such as the Ohio


Justice and Policy Center. Any student who performs 15 or more hours of
volunteer legal work receives an official transcript notation.
Careers

Lawyers help their clients solve problems and resolve disputes with other
parties. Litigators, mediators, arbitrators, and dispute resolution design
professionals work in both the public sector and in private practice. They
may work as trial lawyers in a criminal or civil practice, or even as
attorneys for a corporation or non-profit organization.

A wide variety of career opportunities also exist for those skilled in


litigation and alternative dispute resolution.

There are many benefits for businesses that use ADR instead of focusing
solely on litigation. ADR allows the parties involved to come to a 'win-win'
resolution that considers everyone's position; rather than one in court,
where often one party prevails over another.

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