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Understanding Litigation, Arbitration And Mediation To Resolve External Business Conflict:

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UNDERSTANDING LITIGATION, ARBITRATION AND MEDIATION TO RESOLVE EXTERNAL BUSINESS CONFLICT: WHAT ARE THEY? WHAT ARE THEIR ADVANTAGES AND DISADVANTAGES?

I. INTRODUCTION

Businesses use various methods of dispute resolution to resolve external conflict. Examples of methods used include: negotiation, mediation, arbitration, litigation, and min-trials. (Note that there are other less commonly used methods of dispute resolution that are used from time to time also). It is important to understand what these methods for resolving conflict are and how these methods work in order to evaluate the use of such methods in a given situation and to decide which method or methods should be used in business relationships to resolve conflict. This paper will review three of the most commonly used methods for resolving busienss disputes-- litigation, arbitration and mediation--and discuss what each method is and the advantages and disadvantages of using each method.

II. WHAT IS CIVIL LITIGATION?

The terms litigation refers to the filing of a lawsuit and the use of the courts to resolve a legal dispute. Inherent in this concept is that litigation is used to resolve some sort of legal issue. Thus, in order to use litigation, on must have an unresolved legal issue.

THE STEPS IN THE CIVIL LITIGATION PROCESS.

Introduction

I want to review with you the steps in the litigation process because it is important to understand what litigation is, its characteristics in order to make an informed decision on it use in the conflict management process. In reviewing this method of dispute resolution keep in mind that litigation is often called the adversary system. Second keep in mind that the whole purpose of using an adversarial process is that theoretically, the truth is supposed to be found as a result of litigation. In other words, the thought is that if the parties go at each other as "combatants" using the litigation process the truth will emerge.

The Pleadings Stage

Preparation and filing of a complaint: In order to commence a legal action through the courts, one must prepare and file a complaint. The complaint sets forth the plaintiff's (the party or parties who bring(s) the legal action ) legal "causes of action" against the defendant (the party or parties against whom the complaint is filed). The term, "causes of action" refers to types of legally recognized claims that can be made under a certain set of facts to protect one's legal rights. Examples of causes of action include: breach of contract, fraud, negligence, and wrongful termination (in the employment context).

The complaint, once prepared is then filed with the court and served on the defendant or defendants. The defendant(s) must file an answer to the complaint admitting or denying the facts and claims or causes of action within a specified period of time based on the rules of civil procedure which govern...

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