Introduction
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of social conflict. More narrowly, dispute resolution is the process of resolving disputes between parties. The legal system provides a necessary structure for the resolution of many disputes. However, some disputants will not reach agreement through a collaborative process. Some disputes need the coercive power of the state to enforce a resolution.
The Old Bailey
A trial at the Old Bailey in London, as drawn by Thomas Rowlandson and Augustus Pugin, for Ackermann's Microcosm of London (1808-11).
The most common form of judicial dispute resolution is litigation. Litigation is initiated when one party files suit against another. In the United States, litigation is facilitated by the government within federal, state, and municipal courts. The proceedings are very formal and are governed by rules, such as rules of evidence and procedure, which are established by the legislature. Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the case and the application law. Methods of dispute resolution include: litigation, arbitration, mediation, and conciliation.
Lawsuits
A lawsuit is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent or compel an act. Generally, the conduct of a lawsuit is called litigation. One who has a tendency to litigate rather than seek non-judicial remedies is called litigious.
Arbitration
Arbitration is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons, by whose decision they agree to be bound. Arbitration can be either voluntary or mandatory, and can be either binding or non-binding. In theory, arbitration is a consensual process; a party cannot be forced to arbitrate a dispute unless he or she agrees to do so. In practice, however, many fine-print arbitration agreements are inserted in situations in which consumers and employees have no bargaining power. Because litigation is such a complex process, it is estimated that about 98% of civil cases in the United States federal courts are resolved without a trial.
Mediation
Mediation is a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community, and family matters. The term "mediation" broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable, and dynamics that "ordinary" negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.
Conciliation
Finally, conciliation is a process whereby the parties in a dispute agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. Conciliation differs from arbitration in that the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no authority to seek evidence or call witnesses, usually writes no decision, and makes no award.
Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties' needs, takes feelings into account, and reframes representations.