Adjudication

Adjudication of civil disputes involves the resolution of a conflict by a court or other formal body that makes a judgment based on evidence presented (Gifis 1991, 7). The distinguishing characteristic of adjudication is that it requires disputants to present reasoned arguments and proof of their claims (Fuller 1978).

Adjudication can take place outside the formal court system. Arbitration, for instance, is considered an adjudicatory process, as are private judging and mini-trials. Court-based adjudication is usually considerably more formal than arbitration and other alternative dispute resolution (ADR) processes that occur outside the courts. As the field of alternative dispute resolution has developed, many people have come to use the term adjudication to refer only to litigation carried out in court.
Court-based adjudication of civil cases occurs when one person—believing that he or she has suffered a wrong—files legal charges against another (i.e., sues). If the case goes to trial, a judge—or, frequently, a jury—will listen to testimony and evidence presented by both sides and make a decision. The losing party is permitted to ask a higher court to reverse the decision (i.e., appeal) and frequently does so. However, if no appeal is filed, this decision is binding on both parties.

Court-based adjudication differs from ADR processes in a number of ways. First, it is not voluntary. If one person decides to sue another, the defendant cannot refuse to participate. In contrast, individuals can usually refuse to participate in ADR processes (unless they have contractually agreed to do otherwise, as in binding arbitration). Second, court-based adjudication is subject to appeal, whereas arbitration generally is not. Third, the decision maker in court-based adjudication generally lacks specialized expertise in the subject matter of the dispute. In some ADR processes (e.g., arbitration), the decision maker typically does have such specialized knowledge. Finally, court-based adjudication is a public process, whereas ADR adjudicatory processes are private.
The parties' needs determine whether court-based adjudication or some other process is superior. In addition to the foregoing considerations, parties should consider the following factors.
First, court-based adjudication usually results in a decision that one party is right and the other party is wrong; in other words, it lays blame. This characteristic also tends to mean that the outcome is a win-lose proposition, with the winner taking all and the loser losing everything.
Second, court-based adjudication is generally seen as a power-balancing mechanism. Individuals can sue corporations; abused wives can sue abusive husbands. The person filing a lawsuit does not need the agreement of the defendant to get a fair hearing in court. However, to the extent that legal rules are biased in favor of the more powerful sectors of society to begin with, the power-balancing capacity of court-based adjudication is undercut.
Third, court-based adjudication provides strict rules of procedure and evidence. It dictates what can and cannot be said and how the process unfolds. It ensures that one side does not dominate the discussion. However, by excluding hearsay and other evidence considered inadmissible, court-based adjudication may preclude parties from discussing some matters that they would like to discuss.
Fourth, in court-based adjudication, professionals (lawyers) speak for the conflicting parties. This may be beneficial to those who need help preparing or presenting their cases. It is a disadvantage, however, to others. For example, some parties may wish to avoid the adversarial, blaming, all-or-nothing argumentation of lawyers, especially when future cooperation with the other party to the conflict is important (e.g., in child custody matters). These parties may prefer to argue their cases themselves in more informal processes and to give lawyers only the role of consultants.
Fifth, in court-based adjudication, control of the outcome is not in the hands of the parties. Between the time charges are filed and the date of the trial—or even after a decision is made and a case is appealed—lawyers usually attempt to negotiate a solution to the conflict. But if a settlement cannot be negotiated, the decision of the judge or jury stands and is binding. In either event, decision making tends to be one step removed from the people who must live with the decision, and creative solutions tend to be more difficult to achieve. Sometimes the real, underlying problem between the parties is overlooked.
Sixth, court-based adjudication can be used to set a legal precedent that affects a broad range of persons and interests. If a plaintiff believes that a law is invalid and wants to prevent the application of that law not only to him- or herself but also to all other persons, court-based adjudication may be a good option.
Seventh, court-based adjudication tends to be very slow. The time between filing charges and the hearing can be months or even years. For some people, delay can be beneficial. For those who need a prompt resolution that enables them to resume their normal lives or businesses, however, it can be a disadvantage.
References and Further Reading: Black, Henry Campbell, 1990, Black's Law Dictionary; Fuller, Lon, 1978, "The Forms and Limits of Adjudication"; Gifis, Steven H., 1991, Law Dictionary; Goldberg, Stephen B., Eric D. Green, and Frank E. A. Sander, 1985, Dispute Resolution; Tillet, Gregory, 1991, Resolving Conflict: A Practical Approach.