Mediation, Self-Represented Parties, and Access to Justice: Getting There from Here
87 Fordham Law Review Online 15 (2018)
12 Pages Posted: 29 Mar 2019
Date Written: 2018
Mediation is enthusiastically promoted as a vehicle for providing access to justice. This is as true in developing countries as it is in the United States. For individuals, mediation promises autonomy, self-determination and empowerment; for courts, there is the lure of procedural and administrative reforms—reduced dockets and greater efficiencies. Unburdened with formal discovery, evidentiary and procedural rules, pleadings, and motions, mediation is thought to generate access to justice at a faster pace than litigation. Commentators sing its praises while bemoaning its underutilization.
I argue that claims about mediation’s ability to provide access to justice should be more modest because mediation falls short on its original promise of being a voluntary process based on party self-determination. In what I label a “withering away of consent,” courts and legislatures have pushed hard to sell mediation as an access to justice opportunity, often without regard for the consensual nature of the process. Too often, this hard sell has negative consequences for individuals with disadvantaged economic status who navigate the legal system on their own. These are the self-represented parties who seek access to justice in the formal judicial system but then find themselves in mediation, a different, informal system than what has been institutionalized in the courts. The extent to which they receive justice from either system is unclear.
There are multiple understandings of the meaning of “access to justice” that frequently begin with the need for access to legal representation and to legal processes that can resolve disputes. Beyond these basics, scholars consider a range of issues including whether the scope of the access to justice movement should be expanded to pursue specific goals and reform of specific policies or whether it should pursue incremental change as distinct from deeper change in the infrastructure of the justice system. From a historical perspective, access to justice is a reform movement described by Mauro Cappelletti and Bryant Garth in their international and interdisciplinary study of access to justice, wherein they identified three waves of law reform: legal aid, procedural devices for class actions, and promoting systemic reform of the legal system through alternative dispute resolution (ADR).
In this Essay, I engage with the third wave of the historical access to justice reform movement—promoting systemic reform of the legal system through ADR. My focus is on the institutionalization of mediation in court-connected programs. In addition to the withering away of consent, there are other negative features associated with these programs which impair access to justice and diminish fairness. These impediments include lack of information for parties to guide them through an informed decision-making process, rushed mediation sessions, and questionable mediator behaviors. Critics have observed that current ethical standards focus more on guiding mediators than on protecting the rights of self-represented parties in mediation. All of this raises concerns about the quality of justice experienced by self-represented parties in mediation. Do they achieve the kind of fairness that is considered a core value of the access to justice movement? Beyond fairness concerns, blending the informal justice of mediation with the formalities of the court system raises a basic access to justice question—are the benefits of court mediation more desirable for unrepresented parties than the benefits provided by the civil litigation system?
I argue that to the extent courts, legislatures, and policymakers have institutionalized mediation in the court system, there needs to be greater accountability for its functioning in that system, particularly where vulnerable (self-represented) parties are involved. We need to be concerned not just with the withering away of consent but with the collateral damage that follows in its wake. Towards that end, I will offer a proposal that the mediation community of scholars, practitioners, and users develop a set of best practices specifically directed towards self-represented parties. These stakeholders would then work towards establishing an Index that would rate the performance of court mediation programs serving unrepresented parties.
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