Unit 2 Study Guide: Litigation vs. Alternative Dispute Resolution

2a. describe the process of litigation from trial through appeal
  1. How are jurors selected?
  2. What is the trial process?

How Juries are Selected for Trial

Juries are selected through a process called voir dire. The attorneys query the jurors to determine which jurors would be a best fit for their case. They also exclude those jurors who may be biased. If the juror is biased, the attorney can have the individual dismissed for cause. Attorneys can also use peremptory challenges which allow them to dismiss jurors without stating a specific reason. Courts only allow a certain number of peremptory challenges during voir dire.

The Trial Process

Trials begin with opening statements from both attorneys. The attorneys give an abbreviated outline summarizing their cause of action and the evidence they will use to support their case. After opening statements, the plaintiff's attorney will present a case based on the plaintiff's version of the facts. The plaintiff's attorney will present evidence along with witness testimony. Direct examination involves direct questioning of the witness. After the plaintiff has finished its direct examination of a witness, the defendant can question the witness through cross-examination.

After the plaintiff's case has been concluded, the defendant's attorney can motion for a directed verdict to have the plaintiff's case dismissed. A motion for a directed verdict is granted in cases where the plaintiff has not provided evidence sufficient enough to support the cause of action.

If no motion for directed verdict is made or granted, the defendant will proceed with his or her case. Like the plaintiff, the defendant will present evidence and witness testimony. The defendant's witnesses are subject to cross-examination by the plaintiff's attorney.

Closing arguments are made after the defendant's case has been concluded. During closing arguments, attorneys summarize their case's main points. They emphasize the strengths of their case while pointing out the weaknesses in the opposing side's case.

Before the case goes to the jury, the judge will issue jury instructions. The instructions will include the applicable law the jury is required to apply to the case. The burden of proof in a civil case is a preponderance of the evidence. This means one party has proven that it is more likely than not telling the truth. For a criminal case, the burden of proof is beyond a reasonable doubt and the prosecution bears the burden of proof. This means the prosecution must prove that the defendant has committed the crime and that no other logical explanation exists to prove otherwise. After the jury has reached a decision, it will issue its verdict. The court will discharge the jury and the judge will enter a judgment accordingly. The losing party has the option to appeal the judgment. On appeal, the appellate court will only examine the record to determine if a legal error has been made. To review the trial process, read section "3.4: The Trial and Appeal".

2b. identify methods of alternative dispute resolution and explain how they differ from each other.
  1. What is negotiation?
  2. What is mediation?
  3. What is arbitration?
  4. How do the various forms of alternative dispute resolution differ from one another?

This table will give you an overview of the various forms of ADR.

Form of ADR

ADR Process

Third Party

Involvement

Role of the Parties

Negotiation

During negotiation, the parties bargain in an attempt to resolve the conflict. The negotiation may be undertaken with or without attorney involvement.

There is no 3rd party involvement in the negotiation between the parties.

The disputing parties retain control over the negotiation and determine its outcome.

Mediation

A 3rd party neutral assists disputing parties with reaching a mutually acceptable resolution to their dispute.

The 3rd party is called a mediator. The mediator acts as an intermediary between the parties. The mediator's job is to encourage the parties to seek common ground in resolving their dispute.

The mediator can make suggestions about how to resolve the dispute. However, the parties retain control over the mediation and they ultimately decide how to resolve their dispute.

Arbitration

During arbitration, the parties attend a formal hearing and present their dispute to a 3rd party neutral who rules on the case.

The 3rd party neutral is called an arbitrator. The arbitrator acts like a judge or jury.

The arbitrator decides how to resolve the dispute. After the parties have presented their cases and evidence, the arbitrator will issue a ruling on the case. The arbitrator's ruling may be binding or non-binding.

To review, read sections "4.1: Negotiation", "4.2: Mediation", and "4.3: Arbitration".

2c. explain the relative benefits and drawbacks of litigation and alternative dispute resolution
  1. What are some of the benefits and drawbacks of alternative dispute resolution?
  2. In what scenarios might one choose ADR over litigation? When might one prefer litigation?

Negotiation

Of all the types of alternative dispute resolution, negotiation is by far the simplest. In a negotiation, the parties consult with each other for the purpose of reaching a potential settlement agreement and they bargain at length over the terms of the potential settlement agreement. Negotiation is beneficial because it can take place before or even during a trial. It can help save the parties from lengthy and costly litigation. A key drawback to negotiation can be the lack of equal bargaining power between the parties. If there is a great imbalance in bargaining power, the weaker party may be coerced into accepting a less than favorable settlement.

Principled negotiation is popular among disputing parties because it emphasizes a "win-win" outcome versus "win-lose" outcome to bargaining. Unlike litigation, principled negotiation is non-adversarial. To review, read section "4.1: Negotiation".

Mediation

Mediation is more advantageous than litigation and arbitration because it allows the parties to retain control over how their dispute is resolved. Because they have ownership of the decision making process, the parties are more likely to abide by terms of their agreement. Mediation is also not as costly and time consuming as litigation and arbitration. A drawback to mediation is that not all disputes are suitable for mediation. There are some disputes that are better resolved in court, such as those where a party is combative or uncooperative. In addition, litigation is appropriate where a party refuses to make a good faith effort to resolve the dispute. In this instance, the intervention of a 3rd party neutral to resolve the dispute is necessary. To review, read section "4.2: Mediation".

Arbitration

Arbitration is similar to litigation in that it is adversarial. Arbitration and litigation are appropriate in contentious disputes because they utilize neutral 3rd parties to resolve the conflict. Overall, arbitration is more beneficial than litigation because it is private, less costly, and less time consuming. Unlike litigation, arbitration allows the parties to preserve their ongoing relationship by keeping their dispute private. Arbitration saves parties both time and money because it is more expeditious than litigation. Parties are not forced to deal with scheduling delays associated with the congested court system. The arbitration process is flexible in that arbitrators are not subject to the strict procedural rules that are associated with formal court proceedings. For example, arbitration rules governing the presentation of evidence are less restrictive. To review, read section "4.3: Arbitration".

Unit 2 Vocabulary

This vocabulary list includes terms that might help you with the review items above and some terms you should be familiar with to be successful in completing the final exam for the course.

Try to think of the reason why each term is included.

  • voir dire
  • for cause
  • peremptory
  • opening statement
  • direct examination
  • appeal
  • cross examination
  • directed verdict
  • closing arguments
  • burden of proof
  • beyond a reasonable doubt
  • preponderance of the evidence
  • verdict
  • judgment notwithstanding the verdict
  • jury nullification
  • judgment
  • execution
  • garnished
  • res judicata
  • negotiation
  • mediation
  • mediator
  • arbitration
  • arbitrator
Last modified: Wednesday, July 17, 2019, 5:51 PM