Traditional Litigation System Versus Alternate Dispute Resolution

Traditional litigation system Versus Alternate Dispute Resolution

An understanding of law and the legal system in Canada is essential for the business person. Whether are a manager consultant, a professional or a consumer must deal with suppliers, employees, and government agencies. All of these relationships carry with them important rights, responsibilities, and obligations. As with other aspects of business, it is not good enough to leave simply legal matters in the hands of professionals. A basic understanding of the law is necessary to manage the legal affairs of a business and to be a knowledgeable client. This paper will briefly describe and compare the Canadian litigation system versus alternative dispute resolution (ADR).

The traditional vehicle for resolving disputes in out culture is in the court of law. Civil action involves on person (called the plaintiff) suing another (the defendant). The process of suing another person is lengthy, but each step is designed to encourage to settlement without going to trial. If a trial cannot be avoided a pre trial process ensues. The plaintiff commences a civil action with the issuance of a "writ of summons" (Weir & Ellis, 2004 pg 12). The plaintiff files a document at the court registry and pays a fee; the writ is then served to the defendant. The defendant responds by filing an appearance at the same court registry (If the defendant fails to file an appearance a judgment can be made without any further notice to the defendant). The plaintiff issues a statement of claim, which contains a summary of the allegations that support the cause of action. Upon receiving the statement of claim the defendant must respond with a statement of defense (This document indicates which of the allegations is the statement of claim are agreed and the defendant's version of what happened). The defendant can also file a counterclaim (similar to the plaintiff's statement of claim). Each part has the reviews and copies documents in the possession of the other side. To encourage settlement the defendant can make a payment into court. The defendant may agree on liability, but dispute the amount. The plaintiff can accept the cost or run the risk of paying court costs, including the cost of the defendant's lawyer. The plaintiff can also offer to settle. If the defendant chooses not to accept the plaintiffs offer for settlement, the defendant risks paying the plaintiffs legal costs and a trial ensues, and a judgment is granted in favor of the plaintiff or defendant.

The alternative to the litigation process is referred to as; "Alternate Dispute Resolution" (ADR). ADR is appropriate when there is some degree of goodwill, and the parties are willing to cooperate and compromise (Cheeseman, 2010) . Negotiation should be the method of choice in solving issues. It may be necessary to turn to more structured choice of resolving disputes.