Lawyerless Dispute Resolution: Rethinking a Paradigm

Abstract

Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, few commentators or policymakers have focused on pro se mediation and arbitration. This failure is based on an often unstated premise that, because ADR processes are purportedly non-adversarial or less adversarial than litigation, disputants need representation less in ADR than they do in litigation. This Article suggests that the failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. It is wrong to assume that representation is always more important or necessary in litigation than in ADR processes. Mediation and arbitration can often be quite formal, adversarial, and complex. Moreover, lawyers are not necessarily more important in complex than in simple cases. Attorneys are also needed to balance power inequalities and provide emotional support or voice to their clients. After considering relevant social science research on these points the Article provides some practical suggestions for courts, legislators, and legal services providers.

Keywords: mediation, arbitration, pro se, ADR