What is Adjudication?
Adjudication generally refers to processes of decision making that involve a neutral third party with the authority to determine a binding resolution through some form of judgment or award.1 Adjudication is carried out in various forms, but most commonly occurs in the court system. It can also take place outside the court system in the form of alternative dispute resolution processes such as arbitration, private judging, and mini-trials (see ADR). However, court-based adjudication is usually significantly more formal than arbitration and other ADR processes. The development of the field of alternative dispute resolution has led many people to use the term adjudication to refer specifically to litigation or conflicts addressed in court. 2 Therefore, court-based adjudication will be the main focus of this essay.
Adjudication is an involuntary, adversarial process.
This means arguments are presented to prove one side right and one side wrong, resulting in win-lose outcomes. In civil cases, one side/person that believes he or she has been wronged (plaintiff) files legal charges against another (defendant). In other words, somebody sues someone they have a legal problem with. Once this occurs, both parties are obligated by law to participate in court-based proceedings. If the case goes to trial, each side then presents reasoned arguments and evidence to support their claims. Once that presentation of evidence and arguments is completed, a judge or jury then makes a decision. Appeals may be filed in an attempt to get a higher court to reverse the decision. If no appeal is filed, the decision is binding on both parties.3
Disadvantages of Court-Based Adjudication
The alternative dispute resolution movement of the1970s and 1980s was based primarily on promoting alternatives to litigation and court-based resolution procedures. ADR advocates argued that alternative processes such as mediation and arbitration were more effective and constructive, among other reasons, than litigation.4 Though the debate over which form of justice is “better” is still ongoing, adjudication definitely does have some negative qualities or disadvantages. Some of the main criticisms of court-based adjudication include:5
• Court-based adjudication is prohibitively expensive in terms of monetary cost making it impossible for some parties to take their complaints to a court of law.
• Control of the process is removed from the client/disputant and delegated to the lawyer and the court.
• The decision makers lack expertise in the area of the dispute. In most courts the judges are generalists and practically every jury is too.
• Court dockets are often overbooked, causing significant delays before a case is heard. In the meantime, the unresolved issues can cause serious problems for the disputants.
• Litigation requires that people’s problems be translated into legal issues, yet the court’s decision about those issues does not always respond to the real nature of the underlying problem.For example, issues might be framed in terms of money, where the real issue is one of trust and respect…emotional issues not dealt with in an adversarial process.
• In addition, courts are constrained by the law as to what solutions they can offer. When the underlying issues are not addressed, the decision may produce a short-term settlement, but not a long-term resolution. (See meaning of resolution).
• Adjudication results in win-lose outcomes, leaving little chance the parties will develop a collaborative or integrative solution to the problem, unless the case is settled out of court before the trial.
• Litigation often drives parties apart because of its adversarial, positional nature, while effective resolution often requires that they come closer together. This polarization of the disputants is also often accompanied by emotional distress.
• People enmeshed in litigation experience indirect costs beyond the legal fees. For example, disruption to the functioning of one’s business or progression of one’s career can be just as damaging.
Some conflicts cannot be resolved in court, because there is no court with clear jurisdiction that is accepted by all the parties involved. This happens most often in international conflicts when one or more parties refuses to honor the authority of any international court (such as the International Criminal Court or the International Court of Justice).
Advantages of Adjudication/Litigation
Though adjudication is an adversarial process, it can produce some clear benefits over other options for dispute resolution (i.e. ADR). Proponents of adjudication argue that the process produces more fair and consistent decisions than alternative dispute resolution processes. In fact, ADR has been criticized as providing “second-class justice.” This allegation is based on the fact that processes like mediation have not been institutionalized and there are no set standards of practice or rules of law upon which they are based. On the other hand, adjudication or litigation is grounded in the public judicial system and has a vast array of rules and regulations. There are several advantages that adjudication advocates cite when promoting this dispute settlement process:
• Adjudication produces an imposed, final decision that the parties are obligated to respect. An alternative process, such as mediation, produces only voluntary agreements that can easily fail.
• The outcomes of litigation are, without exception, binding and enforceable. Although arbitration decisions can be binding and enforceable (with the backing of the judicial system) this only occurs when the participating parties agree to such parameters. A party who has not agreed to arbitrate cannot be forced to do so, or be bound by the outcome of arbitration between other parties. With court-based adjudication, however, participation is involuntary and all outcomes are binding and enforceable. This can be a true advantage in situations where there is a serious lack of trust and/or respect between the parties.
• The use of court-based adjudication or litigation allows for decisions to be appealed. The option to appeal confers multiple benefits. For example in monetary settlements, the winning party is often willing to re-negotiate the settlement before it goes to appeal so as to avoid full reversal and retrial. Appeals also allow the reversal of incorrect decisions. Sometimes mistakes are made or evidence that was clearly prejudicial was allowed, thus tarnishing what otherwise may have been a just outcome.6
• Public adjudication offers procedural safeguards that ensure parties due process under the law. Among such safeguards are cross-examination, limitations on hearsay and other rules of evidence, pre-hearing mandatory sharing of information between sides, and other statutory and constitutional protections that fall under the umbrella of due process. Procedural stipulations such as these help ensure that adjudicated outcomes will be fair.
• Litigated decisions are authoritative and based on precedent.
• Court-based decisions are, in theory, based on principles of the law (established norms) that have been previously validated. This makes for consistency in how similar cases are decided over time and better predictability regarding the range of possible outcomes.
• Court-based adjudication is institutionalized, meaning that a party with a complaint needs no one’s permission to bring a lawsuit against another party. In addition, since the courts are funded by the government and do not rely on customer satisfaction (as do some ADR providers), they can issue decisions that may be disliked by the parties, without fear of reprisal in any form.
• Judges, the ultimate adjudicative decision makers, are chosen through a variety of publicly known procedures that ensure they are qualified for the job.
• In addition, there are cases where settlement of a short-term dispute is all that is needed or possible. (Here “settlement” is being compared to resolution which is deeper and more lasting.) If there is no need for or no possibility of a future relationship between the parties, a settlement of their dispute is adequate. If relationships are going to be a long-term issue, however, resolution is preferable, when possible. When not, dispute settlement may well be better than continued fighting, and arbitration is a way to obtain such a settlement.7