The Legal System and ADR Analysis Alternative Dispute Resolution (ADR) and traditional litigation are different types of ways to resolve legal matters. Traditional litigation can prove very costly and often times drawn out for lengthy periods. ADR affords companies the opportunity to resolve a legal matter in a reasonable amount of time and at times without the exorbitant cost of a trail. The case detailed in this paper is Kovalchick v. South Baldwin Hospital, which used traditional litigation, but reversed on appeal the hospital may want to examine the benefits of ADR. Various steps exist at the state level when filing suit against an organization. First Shirley Kovalchick filed a complaint for workers compensation benefits against South Baldwin Hospital after suffering a heart attack. The hospital must file an answer in response to the complaint. In the answer filed by the hospital, they categorically denied the claims posed by Shirley Kovalchick and asked the judge for a summary judgment, which ended the legal action without a trial. A summary judgment can be granted when the court determines that no dispute of issue or material fact exists (Cheeseman, 2013, p. 47). The next step in this case is to file an appeal where the higher courts determined that the lower courts should have reviewed the evidence prior to granting the summary judgment. The higher courts referred the case back to the lower courts for trail. The next step in the state court system is the discovery process. During this process both Kovalchick and South Baldwin Hospital will participate in the process to discover the facts of the case from all parties’ involved as well as witnesses (Cheeseman, 2013, p. 45). A deposition is one of many tools ... ... middle of paper ... ...fied with the decision they can appeal said decision and take the case back through the litigation system. In the case Kovalchick v. South Baldwin Hospital, arbitration might prove most beneficial for both parties concerned. This ADR will keep cost down for the plaintiff as well as the hospital, not that cost is a concern for the hospital but negative publicity may hurt the hospital in the long-term. In conclusion ADR is a tool at the disposal of those involved in legal disputes to resolve their disputes without the all the hassles that entail a trail. References Cheeseman, H. R. (2013). Business Law: Legal Environment, Online Commerce, Business Ethics, and International Issues (8th ed.). Retrieved from The University of Phoenix eBook Collection. Court case. (1999). Nursing, 29(3), 25. Retrieved from http://search.proquest.com/docview/204560046?accountid=458
It deals with perceptions of overall fairness (Blancero, Delcampo & Marron, 2010). Under Civil Procedure Rules, it is generally expected that the parties consider using ADR before beginning deciding on litigation (Ward, 2007). Overall, ADR parties have the freedom to choose who will decide the case, involves a non-hostile environment and disputes are confidential. Whereas, litigation does not have the option to decide who hears the case, the environment can be hostile and the files become public record, although it does offer due process (Benkin, 1994). There are three commonly accepted forms of ADR, negotiation, mediation and arbitration. Although, no method of ADR is equally exclusive to any issue, the benefits of ADR outweigh the
As arbiters divide the differences in half, Sterling, however, is less probable to regain what it believes is the complete measure of its loss (“Arbitration vs. Litigation,” n.d.). In addition, since adjudication entails the adversary presentation of proof and discovery, it frequently has drawbacks similar to those of litigation without the merit of maximizing recovery (Cushman & Myers, 1999). For this reason, I believe mediation would be a decent option for Sterling Computers as it would combine the benefits of arbitration and settlement and could generate a creative settlement offer more appealing to NoBugs. Nonetheless, a disadvantage of mediation is that if the mediator comes up with a way out that NoBugs concurs with, but that is undesirable to Sterling, the parties may end up in a worse position than if they opted for a private settlement (“The Pros and Cons,” n.d.).
The first step that companies should take when integrating a conflict management system is to identify problems that an ADR can address. One major concern company’s face is the financial cost of employment litigation disputes. Some of the negative aspects of employment litigation are difficult to measure in dollars. Other concerns that arise during employment litigation disputes include man hours spent on cases, disrupting the workplace, and the negative impact it has on relationships. This first step is important because it determines whether an ADR system can beneficial to a company. In our class exercise we looked at several complex problems within Pacifine and evaluated whether a conflict management system would be a meaningful alternative for the company.
Alternative dispute resolution (ADR) known in some countries, such as Australia as external dispute resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party.
There are a multitude of features of litigation which have a variety of effects on the parties of a dispute. Litigation, otherwise known as Legal Disputation, are civil legal proceedings in a court between contesting parties, in which the plaintiff commences an action in which a court is asked to determine the dispute between the plaintiff and the defendant or defendants. The rules and basis that governs litigation is the adversarial system of trial, which involves two opposing parties fight to win their case. The role of the adversary system is to determine the way parties resolve their disputes, each role in this system has various effects on the parties and the litigation process.
In conclusion, traditional litigation systems and arbitrary or alternative dispute resolution techniques offer ways of dealing with business disputes. However, litigation systems are expensive, time-consuming, and rigid and have many risks including lack of confidentiality. On the other hand, arbitration is less time-consuming, cheap and flexible because it allows parties to draft their own arbitration agreements. Therefore, arbitrary dispute resolution (ADR) techniques are preferable for businesses.
Our judicial system is based upon Anglo-Saxon model of jurisprudence, better known as the adversarial system of law. The rationale behind adopting the method of ADR is undoubtedly the need to find a method of circumventing and eventually effacing the tremendous problems which beset the litigative system. These courts are confronted by following problems. Problems can be broadly classified into:
The two forms of DAPs that this essay shall consider are Dispute Review Boards (DRBs) and Dispute Resolution Adviser (DRA). The DRA is a dispute resolution system that is based on an individual to avoid disputes. The procedure intend on having maximum party control. The DRA avoids disputes through site visits, familiarization techniques and strong relationships to be built; followed by a series of steps that become more and more interventionist as the early resolution procedures strike out, until a final form of short arbitration commences as a seal to the entire procedures. This form of procedure was first recorded to have been practi...
With all these cases filed and all these cases that are appealed, there are not enough judges or courts for that matter, to handles all these cases. This is why the we have come up with Alternative Dispute Resolutions(ADR). ADR first came about 1960s. Alternative Dispute Resolution simply refers to any way to solve a legal problem without having to go to court. Alternative Dispute Resolutions(ADR) doesn't just deal with minor cases.. Even the Federal government have come up with Alternative Dispute Resolutions(ADR) Working Group which is a branch of the Office of Disputes Resolution at the U.S. Justice Department. Congress and the President established the Working Group to coordinate, promote, and facilitate the effective use of ADR in the government, pursuant to the Administrative Dispute Resolution Act of 1996. (Cinciotta)
Arbitration is a form of dispute method that seeks to bind parties to the arbitration. Lord Bingham defines arbitration being an “appointment of an independent arbitrator, often chosen by the parties, to rule on their dispute according to the terms of reference they give him. This can only be done by agreement, before or after the dispute arises, but where it is done the arbitrator has authority to make an award which is binding on the parties and enforceable by process of the courts”. Arbitration differs from litigation as only the parties to an arbitration agreement may be subject to the jurisdiction of the arbitrator. Whereas in litigation parties may be brought into ligation despite there will of not wanting to be involved.
In a court of law, litigation is the final alternative used when coming to a resolution for a disagreement. Litigation is highly used in the United States, although not as common in other countries (Schaffer, Agusti, & Dhooge, 2014, p. 62). Strengths of the traditional litigation include the decision being
Arbitration is an alternative dispute resolution that has been commonly used in recent years in the employment agreement and commercial contract. The differences between arbitration and mediation are that the third party makes a decision of outcome. Basically, it is a process of any disputes that the solution can make it outside of the public court system. The parties select their arbitrator however they want, or they can get a help from the American Arbitration Association to find an available arbitrator. Furthermore, the process of arbitration is similar to court such as bring witnesses, proof of evidence (Barnes 2017, 28). There are two types of arbitration including a private and judicial arbitration. The “private arbitration” is the simple
Alternative Dispute Resolution (ADR) methods have been in use since the early days of civilization.(1) In the middle ages, crimes were seen as acts of injury caused by one person against another. The parties were expected to reach an agreement that would restore both parties and the community to a state where all involved healed from injury.(2) As civilization has evolved, so has the types of conflicts and perspectives on conflict. The basic premise of conflict will always be the same: “an expressed struggle between at least two interdependent parties who perceive scarce resources, incompatible goals and interference from the other party in achieving their goals.(3)
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions for disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is a more of a official adjudicative and adversary technique initially a confidential litigation process which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11):
Disadvantages: Taking a case through adjudication can be the longest process out of all ADR methods. The case will be very time demanding and can result in time away from work, school,