What Is An Adjudicatory Essay

Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved.[1]

Other meanings[edit]

Competitions[edit]

Adjudication can also be the process, at dance competitions, in television game shows and at other competitive forums, by which competitors are evaluated and ranked and a winner is found.

In court[edit]

"The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a courtproceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. The equivalent of a determination. It indicates that the claims of all the parties thereto have been considered and set at rest."[2]

In construction[edit]

The relevant legislation in the United Kingdom is the Housing Grants, Construction and Regeneration Act 1996 (1996 Chapter 53).[3][clarification needed]

In healthcare[edit]

"Claims adjudication" is a phrase used in the insurance industry to refer to the process of paying claims submitted or denying them after comparing claims to the benefit or coverage requirements. The adjudication process consists of receiving a claim from an insured person and then utilizing software to process claims and make a decision or doing so manually. If it is done automatically using software or a web-based subscription, the claim process is called auto-adjudication. Automating claims often improve efficiency and reduce expenses required for manual claims adjudication. Many claims are submitted on paper and are processed manually by insurance workers.

After the claims adjudication process is complete, the insurance company often sends a letter to the person filing the claim describing the outcome. The letter, which is sometimes referred to as remittance advice, includes a statement as to whether the claim was denied or approved. If the company denied the claim, it has to provide an explanation for the reason why under regional laws. The company also often sends an explanation of benefits that includes detailed information about how each service included in the claim was settled. Insurance companies will then send out payments to the providers if the claims are approved or to the provider’s billing service.

The process of claims adjudication, in this context, is also called "medical billing advocacy".

Background investigations[edit]

Adjudication is the process directly following a background investigation where the investigation results are reviewed to determine if a candidate should be awarded a security clearance, or be suitable for a public trust position, which is a job that requires a very knowledgeable and responsible person, often related to national security. It may be determined that the person is not suitable for a public trust position, but is suitable for a non-sensitive position. However, a person may be deemed unsuitable for any position.

From the United States Department of the Navy Central Adjudication Facility: "Adjudication is the review and consideration of all available information to ensure an individual's loyalty, reliability, and trustworthiness are such that entrusting an individual with national security information or assigning an individual to sensitive duties is clearly in the best interest of national security."

Emergency response[edit]

Adjudication is the "process of identifying, with reasonable certainty, the type or nature of material or device that set off an alarm and assessing the potential threat that the material or device might pose with corresponding implications for the need to take further action."[4]

Referring to a minor[edit]

Referring to a minor, the term adjudicated can refer to children that are under a court's jurisdiction, usually as a result of having engaged in delinquent behavior and not having a legal guardian that could be entrusted with being responsible for him or her. A child dependency or neglect adjudication can also result in a determination that a child is in need of services.

Different states have different processes for declaring a child as adjudicated.

Arizona state law defines a dually adjudicated child as "a child who is found to be dependent or temporarily subject to court jurisdiction pending an adjudication of a dependency petition and who is alleged or found to have committed a delinquent or incorrigible act."[5]

According to Illinois state law, adjudicated means that the Juvenile Court has entered an order declaring that a child is neglected, abused, dependent, a minor requiring authoritative intervention, a delinquent minor or an addicted minor."[6]

In Australia[edit]

Each state and territory has enacted security of payment legislation which provide for adjudication of progress claims, starting with New South Wales in 1999. There is very little harmony between the legislation in each jurisdiction regarding the scope of contract covered and the adjudication procedure. However, in all jurisdictions, adjudications are interim pending final resolution of the dispute under the relevant terms of the contract.

In New South Wales[edit]

The Building and Construction Industry Payment Act 1999[1] came into effect in New South Wales on 26 March 2000 and applies to all construction contracts commenced on or after that date. Amendments to the Act made in 2013 are not retrospective, however, earlier amendments are. The Act does not apply to mining work, however, construction work ancillary to the operation of a mine is covered. The Act also does not apply to work undertaken for a resident owner within the meaning of the Home Building Act 1989[2].

In NSW. the recent case of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd[7] has allowed an adjudicator's determination for a non-jurisdictional error to be overturned through judicial review.[7] The case went against Brodyn Pty Ltd v Davenport[8] which previously held judicial intervention was limited to cases of a breach of essential and basic requirements.

In Queensland[edit]

The Building and Construction Industry Payments Act 2004 (BCIPA) came into effect in Queensland in October, 2004. Through a statutory-based process known as adjudication a claimant can seek to resolve payment on account disputes. The act covers construction, and related supply of goods and services, contracts, whether written or verbal. BCIPA is regulated by the Building and Construction Industry Payments Agency, a branch of the Queensland Building Services.

In Victoria[edit]

Adjudication is a relatively new process introduced by the government of Victoria, Australia, to allow for the rapid determination of progress claims under building contracts or sub-contracts and contracts for the supply of goods or services in the building industry. This process was designed to ensure cash flow to businesses in the building industry, without parties getting tied up in lengthy and expensive litigation or arbitration. It is regulated by the Building and Construction Industry Security of Payment Act 2002.

Builders, sub-contractors and suppliers need to carefully choose a nominating authority to which they make an adjudication application.

See also[edit]

References[edit]

Further reading[edit]

  • Darren Noble, Users' Guide to Adjudication in Victoria (Anstat 2009)[3]
  • Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. (Yale University Press, 1986).
  • Gad Barzilai, Communities and Law: Politics and Cultures of Legal Identities (Ann Arbor: University of Michigan Press, 2003).
  • Erwin Chemerinsky, Constitutional Law: Principles and Policies (Aspen Publishers, 2006).
  • Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 2005, originally 1977).
  • Conor Gearty, Principles of Human Rights Adjudication (Oxford University Press, 2005).
  • Michael J. Gorr and Sterling Harwood, eds., Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (Westview Press, 1992).
  • Michael J. Gorr and Sterling Harwood, eds., Crime and Punishment: Philosophic Explorations (Wadsworth Publishing Co., 2000; originally Jones and Bartlett Publishers, 1996).
  • H.L.A. Hart, The Concept of Law (Oxford University Press, 1961).
  • Sterling Harwood, Judicial Activism: A Restrained Defense (Austin & Winfield Publishers, 1993).
  • Allan C. Hutchinson, It's All in the Game: A Nonfoundationalist Account of Law and Adjudication (Duke University Press, 2000).
  • David Lyons, Ethics and the Rule of Law (Cambridge University Press, 1984).
  • David Lyons, Moral Aspects of Legal Theory (Cambridge University Press, 1993).
  • John T. Noonan and Kenneth I. Winston, eds., The Responsible Judge: Readings in Judicial Ethics (Praeger Publishers, 1993).
  • Kathleen M. Sullivan and Gerald Gunther, Constitutional Law, 15th ed. (Foundation Press, 2004).
  • Harry H. Wellington, Interpreting the Constitution: The Supreme Court and the Process of Adjudication (Yale University Press, 1992).

Lectures[edit]

By
Brad Spangler

July 2003

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 refuse 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]

[1] Douglas Yarn, The Dictionary of Conflict Resolution (San Francisco: Jossey-Bass Publishers, 1999), 5.

[2] Heidi and Guy Burgess, Encyclopedia of Conflict Resolution (Denver: ABC-CLIO, 1997), 2. NOTE: This excerpt of the Burgess' book includes a helpful discussion of the key differences between court-based adjudication and alternative dispute resolution processes.

[3] Ibid.

[4] Stephen B. Golderg, Frank E.A. Sander and Nancy H. Rogers, Dispute Resolution: Negotiation, Mediation, and Other Processes, 2nd Edition (Boston: Little, Brown and Company, 1992), 6-8.

[5] The following bullet points were distilled from the discussion of disadvantages of litigation in: Edward A. Dauer, Manual of Dispute Resolution: ADR Law and Practice (Colorado Springs: McGraw Hill, Inc., 1994), 4-3-4-12.

[6] For discussion of how appeal procedures can be incorporated into private ADR see: Edward A. Dauer, Manual of Dispute Resolution: ADR Law and Practice (Colorado Springs: McGraw Hill, Inc., 1994), 4-16.

[7] The following bullet points were distilled from the discussion of advantages of litigation in: Edward A. Dauer, Manual of Dispute Resolution: ADR Law and Practice (Colorado Springs: McGraw Hill, Inc., 1994), 4-12-4-20.


Use the following to cite this article:
Spangler, Brad. "Adjudication." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: July 2003 <http://www.beyondintractability.org/essay/adjudication>.


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