The conversation has its origins in Resolution 5 of the Conference of Chief Justices, which sets a goal of 100% access to justice for essential civil legal needs and encourages each state to develop a strategic plan to get there. In his latest post, Zorza suggests that as part of this effort, ADR system design focus on triage, consent, the role of the neutral, the use of nonlawyers and outcome measures. I agree with most of these, and see in them the need to fully integrate ADR into the Chiefs’ efforts to achieve 100% access.
Resolution 5 calls for enhanced services in order to reach 100% access, including self-help services, unbundled legal services, pro bono assistance, effective use of technology and increased availability of legal aid services. As I see it, all of these need to integrate with ADR in order for ADR to be used effectively to provide access to justice. Triage and consent require that parties be informed of the options available to them, the pros and cons of each option, and how ADR processes work. This information can be provided through help desks, online resources and unbundled legal services, as well as the traditional pro bono assistance. As these are expanded, they need to incorporate good information and advice about ADR.
These types of services are needed as well in order for more self-represented litigants (SRL’s) to get access to ADR. In discussing triage, Zorza says that, “It will be helpful that there is already pretty broad consensus within the 100% world that relative power or powerless is an important component of triage as to what assistance litigants need, and I would assume that that is already generally considered a major component in the ADR appropriateness analysis that is already being done, I would hope routinely.” Generally, when the option is mediation, courts handle the question of power imbalance by not sending cases to mediation when one party is self-represented. This limits the options for those parties, however, and places more burden on the court.
Zorza wants to “unmuzzle” neutrals as a way of expanding the use of ADR to these types of cases. To him, this means allowing neutrals to help parties “understand their rights and the implications of their choices.” This is the recommendation I don’t agree with, at least when it comes to mediation. The line between legal information and legal advice is very fine but cannot be crossed. Asking mediators to find that line when there is no real consensus on where it is will create problems not just for the mediators but for the courts as well. Further, encouraging mediators to provide legal information to a party opens the mediator to the appearance of bias as they could be seen as helping one party and not the other.
I do agree with Zorza that it is very important to provide information to parties in mediation so that they can be fully informed about their rights and what they are agreeing to. But there are better ways of doing this than to change the role of the mediator. For example, the U.S. District Court for the Northern District of Illinois, has partnered with the law firm Mayer Brown to have lawyers volunteer to prepare self-represented parties for and represent them in settlement conferences. This kind of assistance also can be provided through paid unbundled legal services. Lawyers can assist by preparing the parties to mediate and by looking over any agreements reached in mediation. Some mediation programs are sending SRL’s to online legal resources to get this information for themselves. This may be sufficient for some types of cases.
Nonlawyers can help inform SRL’s as well. When referencing the use of nonlawyers, Zorza talks about them assisting in ADR as a way of increasing the pool of appropriate cases. I couldn’t agree more, and as the disputes to which SRL’s are being party to become more complex, the need for broader services in connection with ADR becomes greater. A good example is foreclosure mediation. In many foreclosure mediation programs, housing counseling is provided to homeowners prior to mediation. The counselors do much of the prep work for the mediation itself and often obtain an agreement for the homeowners. In others, the housing counselors attend mediation and act as a resource for the homeowner.
All of these services are needed, but none are adequate if the policies and procedures for ADR don’t address the issue of quality. Appropriate policies and procedures are required to weed out unqualified ADR neutrals and to hold neutrals accountable. A system also needs to be set up to provide disputants an easy way to file a complaint about the service they were provided.
As important as any of this is assessing processes and measuring outcomes. We need to know what works and what doesn’t so that improvements can be made. In this, I am in emphatic agreement with Zorza. RSI includes a monitoring system with every program design and preaches this practice to the court ADR field.
ADR isn’t the answer to access to justice on its own. A structure of support services and good procedures needs to be put in place in order for SRL’s to experience justice, not just access it.