Topic 2 – Adjudication and its Functions
Legal systems
Common law – judicial precedent and an adversarial process
Civil law – code based and an inquisitorial process
ADR is an alternative to a state-sponsored process. The process is informal.
Characteristics of adjudication
-Public
-Finality
-Turn taking
-Zero sum
-Imposition of decision
Parties in ADR processes are not forced to accept an outcome.
The Differences
Civil – adjudication preceded by court-led investigation
Court identifies the best evidence
Focus on documentary evidence e.g. written depositions taken before trial
The adjudicator is an interventionist
Based on the Civil Code.
Common – strict rules of evidence
Traditional focus on orality
Party ownership and choice of evidence
Minimalist judge acting as umpire
Case-law and precedent core element
Legal systems
Common law – judicial precedent and an adversarial process
Civil law – code based and an inquisitorial process
ADR is an alternative to a state-sponsored process. The process is informal.
Characteristics of adjudication
-Public
-Finality
-Turn taking
-Zero sum
-Imposition of decision
Parties in ADR processes are not forced to accept an outcome.
The Differences
Civil – adjudication preceded by court-led investigation
Court identifies the best evidence
Focus on documentary evidence e.g. written depositions taken before trial
The adjudicator is an interventionist
Based on the Civil Code.
Common – strict rules of evidence
Traditional focus on orality
Party ownership and choice of evidence
Minimalist judge acting as umpire
Case-law and precedent core element
