Legal system dispute resolution mechanisms

¶ … Legal System//Dispute resolution

You are a party (plaintiff or defendant) in a civil lawsuit. You and your attorney are deciding whether you should request that the trial be conducted with a jury. Identify and explain three factors to consider in this decision.

From the plaintiff's perspective, a civil lawsuit involving complicated and technical evidence with strong emotional implications will likely be more fairly evaluated by a judge. For example, in cases involving medical malpractice, the sight of a bereaved widow or a child with a severe birth defect might be more emotionally persuasive than hard, cold medical evidence that indicates that there was nothing the physician could do to prevent the tragedy from occurring. If a large corporation is being sued, a jury might even think that the company can 'afford to pay a large settlement' to a defendant who is sympathetic but has a tenuous product safety complaint. Jurors may not ignore inflammatory and inadmissible evidence that a lawyer attempts to 'sneak in,' even if the judge tells them to disregard it when coming to a conclusion. Thus, knowing that the opposing party has a persuasive and grand-standing lawyer might be another reason to take the emotional pull of the other side's case into consideration, and ask for a judge rather than a jury trial.

The dangers of emotional appeal are not the only reasons to have a case heard by a judge: cases involving complex legal or scientific matters may simply not be comprehensible to the average juror. Patent disputes, cases involving intellectual property, or arcane aspects of zoning laws might be too detailed (or to dull) to command a jury's full comprehension and understanding.

Finally, speed is another consideration: if a speedy decision is desired or necessitated, having a single deciding individual in the form of a judge is likely to yield a swifter decision than a jury trial.

Identify and explain the advantages and disadvantages of dispute resolution by litigation, arbitration and mediation

Of the three methods of dealing with a dispute, mediation is the least formal. Mediation is non-binding, while in arbitration, the neutral third party often functions as a judge and can make decisions about the type of evidence that is admissible or inadmissible. The advantage to mediation is that all parties get to air their grievances: in some instances, that is the main desire of both parties, who may wish to avoid the expense and the time-consuming process of litigation. However, the close personal contact necessitated in mediation can also inflame tensions and result in more, rather than less ill-will, such as in the case of persons negotiating child custody after divorce. The mother or father might simply become angrier, upon being confronted with a former spouse. An overly informal mediation process can result in the rights of some of the involved parties being overlooked, such as the fact that in child custody disputes, the legal standard is that the best interests of the child should prevail, not simple fairness to the parents. The informal nature of mediation may allow evidence to be considered that might be prohibited in a court of law.

Arbitration is more complicated than mediation. Since arbitrators "give written opinions, which can be binding or non-binding…the most common procedure is for each side to select an arbitrator and for those two arbitrators to select a third arbitrator. The dispute is then presented to the three arbitrators chosen, with a majority of the arbitrators rendering a written decision"(Renia 1999). Arbitration is swifter and less formal than litigation. However, some people may feel that arbitration gives too much power to the arbitrators, even though arbitration does not protect the rights of the defendant and plaintiff with the same degree of scrutiny as a court of law. Some may feel arbitration offers the best of all three options; others might feel it is the worst because it does not offer the full benefits of informal mediation or formal litigation.

Litigation has the advantage of ensuring that all potential issues are aired in the open, under the formal scrutiny of a judge. It ensures that both parties have their interests protected equally, and a judge will intervene if he or she feels that emotions or other potentially unfair aspects of the process are interfering with the course of justice. It also keeps angry partners separated, which can be important in the case of a divorce.