Indigency, Secrecy, and Questions of Quality: Minimizing the Risk of 'Bad' Mediation for Low-Income Litigants
35 Pages Posted: 25 Sep 2017 Last revised: 12 Jan 2018
Date Written: 2017
Mediation can be magical. In the face of seemingly insurmountable differences, it can lead to productive resolutions far beyond what litigation could ever produce.' In the hands of sophisticated practitioners and in appropriate cases, it offers a means for participants to engage in self-determination and more flexible conflict resolution. In light of how well mediation can work, it has experienced explosive growth in all areas of conflict, and in both private and court-connected contexts. There is, nevertheless, a risk that mediators can be unskilled or, worse, affirmatively damaging. This risk is endemic to all mediation but play out in particularly troubling ways when low-income litigants participate in mediation through court-annexed programs that have few resources, high volume, and uncertain quality control. There are a number of reasons why such a risk exists. There is little consensus about how best to practice mediation. Mediators can and do advocate a wide range of, and sometimes inconsistent, approaches to mediation. The debate becomes foundational, even to the extent that mediators claim that another style of mediation is not mediation at all. This means that mediators do not agree about what the norms of their profession are, and thus, do not agree about whether a mediator is unskilled or not. Indeed, to the extent codes for mediators exist, such as the Uniform Mediation Act and the Model Standards of Conduct for Mediators, they are not detailed because there is not consensus as to what good mediation is. Moreover, confidentiality, while valuable, also has unintended consequences of largely insulating mediations from scrutiny.
The risk of poor mediation intensifies in settings where there are large numbers of low-income litigants. These litigants often know nothing about mediation, may face more powerful litigants, and, in almost all cases, have no legal counsel. The lack of an effective means to assess quality in such a setting creates a risk that such participants will not only fail to experience the many benefits that good mediation can offer, but instead experience the negative consequences that bad mediation can generate.
This Article traces these interlocking circumstances as a means to explore the risks faced by low-income mediation participants. The Article first explores the range of issues that have impeded a unified understanding of the professional norms and identities of mediators. Second, the Article defines bad mediation and the particular vulnerability low-income litigants face in the context of high-volume court-annexed programs. The Article concludes with recommendations about how best to minimize the risk of bad mediation, with a particular emphasis on insuring quality mediation for low-income litigants.
Keywords: Indigency, Mediation, Mediators, Alternative Dispute Resolution
JEL Classification: K40, K49
Suggested Citation: Suggested Citation