ADJUDICATION AND ITS FUNCTIONS
Legal systems
Common law – judicial precedent and adversarial process
Civil law – code based and inquisitorial
Generic characteristics of adjudication: public, final, turn taking, zero sum, imposition of decision.
ADR is an alternative to state-sponsored dispute resolution. The process is informal, and parties are
not forced to accept the outcome.
The differences
Civil law – judge led investigation, court identifies best evidence, focus is on documentary evidence
e.g. written depositions, the adjudicator is interventionist, based on a civil code.
Common law – strict rules of evidence, traditional focus on orality, party ownership and choice of
evidence, judge acts as umpire, case law and precedent, statutory interpretation by judges based on
rules of interpretation through custom and case law.
Function of trial
Remedies – provides authoritative solutions and finality.
Risk assessment – guides future behaviour/facilitates bargaining in the shadow of the law.
Information – reveals facts and fact patterns.
Publicity – legal system is available for all to view
Accountability – allows us to hole the legal system, government and judges to account.
Educational – instructs us on the workings of the state and the underlying principles of our society
Principles – facilitates the development of the law
Debate – articulates public values
It’s also a tool for negotiating for a settlement.
Bargaining in the shadow of the law
Mnookin & Kornhauser (Bargaining in the shadow of the Law) – parties consider their bargaining
chips which could be precedent, proof/evidence, costs and time and how likely it is that their
arguments will succeed on the basis of existing law and judicial opinion.
Parties need to assess their case and how likely it is to succeed but must also bear in mind that there’s
no 100% certainty in litigation.
Negotiation/mediation can occur at any time before/during the court process.
Risk analysis in dispute resolution
Risk analysis should be done on the likelihood of success, the type or lawyer and whether one is
needed e.g. not a requirement in employment tribunals.
Galanter – describes haves + have nots. Have-nots likely not to proceed to trial. Haves - have lawyers
who advise clients well on their position of advantage. One shotter – no experience in litigation.
Repeat players – significant experience/familiarity with the court process.
