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<xTITLE>The Critical Role of Mediation in Bridging the Access to Justice Gap</xTITLE>

The Critical Role of Mediation in Bridging the Access to Justice Gap

by Robyn McDonald
January 2015

Originally published in The Colorado Lawyer | September 2014 | Vol. 43, No. 9 69.

Robyn McDonald

For more than a decade, Colorado has worked to provide access to justice (ATJ) for its indigent and modest means citizenry. Despite efforts by the bar and the courts, such as providing pro bono legal services, the state continues to struggle in its pursuit. What is often overlooked, however, is how mediation provides the courts and litigants an affordable, efficient option to resolving many disputes. This article (1) discusses nationwide ATJ efforts; (2) contrasts recommendations made by the Colorado ATJ Commission in its 2008 and 2014 Reports1; and (3) discusses a recent Canadian Study2 of self-represented litigants (SRLs) that suggests there would be benefits to increasing the use of quality mediation in U.S. courts. The article’s conclusion is that mediation is an underused but necessary resource for the Colorado bench and bar, as well as for pro se and modest means litigants. When used in conjunction with other tools, such as limited-scope representation (un bundled legal services3), mediation can provide important assistance to those who need it and may supply a missing piece to the ATJ puzzle. What this means for the future of mediation is a greater incentive for counsel and the courts to create a more comprehensive and collaborative partnership with the self-represented litigant, in hopes of achieving the ultimate interest based goal: resolving conflict efficiently, effectively and by party determination. Modern-day litigants are more perceptive, and they want to be an active partner in the discussions and determinations of their disputes. However, the takeaway from the study is that mediation is gaining the public trust, but it needs to be offered on a more consistently professional and credible level and basis. Mediation is perhaps finally, an event whose time has come.

National ATJ Efforts

During a speech in 1963 before the New England Conference on the Defense of Indigent Persons Accused of Crime, U.S. Attorney General Robert F. Kennedy stated:

If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell with a pencil and paper to write a letter to the Supreme Court, and if the Court had not taken the trouble to look for merit in that one crude petition, . . . the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter, the Court did look into his case, . . . and the whole course of American legal history has been changed.4

Since Gideon v. Wainwright,5 the quest to meet the needs of indigent and moderate income litigants (civil or criminal) remains a nationwide goal. The U.S. Department of Justice (DOJ) initiated the ATJ Initiative in 2010, creating an office dedicated to enhancing access to criminal and civil legal services for those who cannot afford them.6 The office works to prevent homelessness, ensuring access to healthcare, housing, education, employment, family stability, and community well-being for citizens and, in particular, for veterans and tribal communities.7

In 2011, an ambitious project founded by the American Bar Foundation, known as “Access Across America: First Report of the Civil Justice Infrastructure Mapping Project,”8 became the first state-by-state portrait of the services available to assist the U.S. public in accessing civil justice. The Project defined the ATJ infrastructure and described general patterns observed across the fifty states and the District of Columbia.9

States have worked for years to prepare the courts and their administrators for the surge of low-income litigants and SRLs, and the resulting effect on the court systems.10 From the use of the Telephone Interpreting Program in Federal Courts,11 to ongoing dialogues with the White House,12 courts are determined to bridge the ATJ gap. Recently, the National Center for ATJ launched the Justice Index, a website devoted to detailing the scope of the programs across the country for state-based justice systems.13

Colorado ATJ Commission

In Colorado, a partnership among the bench, the bar, and the Statewide Legal Services Group to provide quality, affordable ATJ for its indigent and modest means citizenry culminated in the creation of the Colorado ATJ Commission (Commission) in 2003.14 Its mission has been to “develop, coordinate, and implement policy initiatives to expand access to and enhance the quality of justice in civil legal matters for persons who encounter barriers in gaining access to Colorado’s civil justice system.”15

Statewide Hearings on ATJ

In 2007, the Commission (with the assistance of local ATJ committees) held ten hearings throughout the state to assess the civil legal needs of Colorado indigents. In its 2008 Report, the Commission concluded that Colorado faced a crisis in civil legal representation of its indigent community.16 Too many Coloradans lacked needed services because of the shortage of affordable legal assistance. The Commission found the following problems:

~insufficient legal aid services

~inadequate number of legal aid attorneys

~insufficient funding

~overburdened courts due to the increase in SRLs

~insufficient private attorneys willing to provide pro bono services. 17

Notably, the 2008 Report acknowledged the crux of the issue:

Many other factors serve to deny poor people access to justice. Every low income person who testified at the hearings discussed the complexity of the law and the court system, legal paperwork, and legal procedures that made it difficult or impossible for them to resolve their legal problems. Judges testified that working with unrepresented litigants demands more judicial time. . . . Judges are conflicted by the need to remain impartial and not help either party, while also serving the ends of justice.18

The Commission made several recommendations to bridge the ATJ gap:

1. Establish a plan to provide civil legal services for the indigent (increase funding for Colorado Legal Services and for its attorneys). 

2. Promote participation by the private bar in pro bono legal services. 

3. Improve services for pro se litigants (increase the number of family facilitators and pro se offices).

4. Improve access to the legal system (improve access to the courts for all litigants and provide more user-friendly services for those with disabilities, those not fluent in English, and those unfamiliar with computers and other forms of modern technology).19

2014 Report Findings

Six years later, in 2013, the Commission again held hearings throughout the state to assess the progress of its previous recommendations and current needs. Despite the Colorado Legislature’s funding for Family Violence Justice Fund, the Judicial Branch’s request for funding for additional court facilitators and self-represented litigant coordinators (SRLCs or Sherlocks), the bar’s focus on ATJ as part of its mission, and enormous encouragement from the Supreme Court to engage in pro bono representation, the results were similar. The 2014 Report found:

~a lack of access to legal services

~too many unrepresented litigants 

~too few legal aid attorneys 

~state funding, although improved, was well below the national average.20

As before, the Commission made many of the same recommendations, with some additions: 

1. Increase funding for the civil legal aid delivery system. 

a. Increase legislative funding. 

b. Dedicate a portion of attorney registration fees to funding civil legal services.

c. Amend court rules to increase fees for out-of-state attorneys to appear in Colorado courts, with the increase being used to fund civil legal services. 

d. Amend CRCP 23 (on class actions) to dedicate at least half of class action “residual funds” to be disbursed to the Colorado Lawyer Trust Account Foundation (COLTAF) to support the civil legal aid delivery system.

e. Amend Colo. RPC 1.15 to require banks to provide comparable interest rates on COLTAF accounts to similar accounts so as to maximize COLTAF revenues for the civil legal aid delivery system.

f. Create a filing fee surcharge for civil legal aid.

g. Amend the Unclaimed Property Act to direct unclaimed funds in lawyer trust accounts to COLTAF to support civil legal aid.21 

2. Enhance the resources for SRLs, thereby reducing the need for legal representation. 

a. Increase the number of SRLCs. 

b. Develop, implement, and improve accessibility of technology for SRLs (electronic filing, online forms with plain language instructions, and online legal information).22

3. Mobilize additional private resources. 

a. Encourage (by stronger measures) all Colorado attorneys to provide pro bono services. 

b. Create and promote options that increase representation for modest means litigants.23

In conjunction with Recommendation 3(b), Colorado Supreme Court Chief Justice Nancy Rice has established an Attorney List Super Committee, tasked with exploring options for a Modest Means Attorney List that will meet the needs of both the modest means litigants and attorneys (recently admitted or seasoned) seeking clients.

The SRL Phenomenon

The deluge of SRLs in the court system, particularly in the family and civil courts, has radically altered the judicial role in Colorado. Some courtrooms are adjusting better than others, but the increase in SRLs is clearly straining the bench, staff, and services.24 Judges are torn between providing needed assistance to SRLs who are unfamiliar with the court process and substantive law, and maintaining appropriate judicial impartiality and neutrality.

Judicial Code of Conduct: Rules 2.2 and 2.6 

Rules 2.2 and 2.6 of the Judicial Code of Conduct underwent some important modifications in 2010, due to the explosion of SRLs.25 The Supreme Court also modified comments to both rules to include important language that assisted the bench in dealing with SRLs. This allowed courts to address the inherent conflict faced when dealing with a layperson with little or no subject matter or procedural knowledge, while maintaining the necessary impartiality benefitting a litigant represented by counsel.

Rule 2.2, Impartiality and Fairness, now states that “[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” Comment [4] to this Rule states, “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”26  

Rule 2.6, Ensuring the Right to Be Heard, now states that “[a] judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law” and “may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement.” Comment [2] to this Rule states:

The steps that are permissible in ensuring a self-represented litigant’s right to be heard according to law include but are not limited to liberally construing pleadings; providing brief information about the proceeding and evidentiary and foundational requirements; modifying the traditional order of taking evidence; attempting to make legal concepts understandable; explaining the basis for a ruling; and making referrals to any resources available to assist the litigant in preparation of the case. Self-represented litigants are still required to comply with the same substantive law and procedural requirements as represented litigants.27

Stalled Progress

Although the suggested solutions and modified rules have been helpful, they aren’t working as well as expected.28 This may be due the fluctuating legal infrastructure: (1) the increasing volume of laws; (2) the complexity of those laws for the layperson; and (3) the changing technology that must be first learned and understood by persons unfamiliar with court process, including court forms or newer technology. 

Comments made during the recent hearings noted that SRLs lack both procedural and substantive knowledge in the courtroom, and are unable either to access or understand the technology needed to access online forms.29 Clerks and Sherlocks can do only so much for the SRL without crossing into the “unlawful practice of law.”30 Much of the legal profession has not adopted methods to incorporate moderate income people into their practices, and private attorneys handling pro bono cases cannot fill the need for representation of Colorado’s low-income population. The result is that legal services continue to be unaffordable for many people; the SRLs must fend for themselves, and they are having a tough time accomplishing that task.

The Canadian Study

A 2013 seminal study out of Canada (Canadian Study) may provide some insight into the SRL conundrum. The study also provides some much-needed guidance for developing solutions closer to home.31

Motivations to Self-Represent 

In the Canadian Study, researchers identified the needs of SRLs and the basis for their daunting choice to enter the courtrooms unsupported by counsel. The reasons are not surprising; they are nearly the same as those here in the United States:32 

~They are dissatisfied with the high cost of legal services.33 

~They have made a personal decision to handle legal matters themselves.34 

~They believe the Internet can adequately help them resolve their legal issues. (In other words, “Who needs an attorney if I can Google it?”)35 

Canadian SRLs made a cost/benefit analysis that in the end saves them time, money, and emotion. When asked about the availability of unbundled legal services, many indicated that they tried unsuccessfully to find an attorney who would have provided such services; many would have liked to use them, but could not find an attorney who would provide them, so they proceeded alone.36 

Many SRLs were “moderately or very dissatisfied” with their legal representation earlier in their case (counsel may have represented them at some point during litigation, but subsequently withdrew). The majority of respondents made it clear that they could no longer afford to retain counsel.37 The reasons cited for self-representation included negative experiences with expensive professional services. The survey cited specific examples: 

1. Counsel failed to advance the matter, or to bring it to a realistic outcome. This occurred often in smaller communities where members of the bar knew each other well.38 

2. Counsel was not interested in settling the case. He or she “deliberately slowed the process in order to bill hours and make more.”39 

3. Counsel failed or refused to settle, or to modify their behavior or approach to settle cases quickly. “The two lawyers were just saber rattling, seeing who could piss the other off the most.”40 

4. Counsel lacked competent settlement skills. “A lawyer should have the wisdom and skill to modify their approach to resolve matters for all parties as opposed to putting fuel on the fire.”41 

5. Counsel failed to listen or explain the process effectively. “Clients did not feel heard, nor did they feel treated as an equal partner in the process.” This seems to follow a modern trend that a client is no longer merely a layman “novice,” but has gathered enough information to entitle him or her to be part of the legal discussion and participate in guiding his or her own destiny.42 

6. “Lawyer not listening to the client, the lawyer ignoring the priorities of the client in favor of pursuing an outcome in which the client was less interested and the lack of a plan for moving settlement forward.”43 

7. Aversion toward mediation by counsel. “[Counsel] was not working to resolve the issues, but working for his payment.” This was a common complaint in the survey.44 

8. “Sloppy work” by the attorney. There were several instances of briefs poorly edited and counsel exhibiting an ignorance of the law. This created additional stress on clients in high-conflict situations such as domestic matters, where having an “incompetent lawyer,” made the prospect of paying a large amount of money unrealistic. The conclusion for many SRLs was, “How could it be any worse than this if I do this alone?”45 

9. Twenty percent of SRL respondents decided to handle their own cases so they could have active input in the outcome and decide their own course. “[I]t’s my story and no one knows it better than me—I lived it and breathed it.” “I wanted to be in control of my own destiny.”46 

10. Many SRLs believed the combination of available resources (online research technology, libraries, and court staff ) gave them sufficient assistance to allow them to continue alone. A common theme throughout the study was that no lawyer could possibly understand what the case meant to the litigant.47

The study noted a tension between an SRL’s need to maintain control of his or her destiny and the anxiety of taking the helm, especially when confronted by aggressive counsel.48 Some defiantly continued without counsel, believing a lawyer would not benefit them. Others would have genuinely welcomed the assistance of a “competent” lawyer if they could have afforded one.49 For some, self-representation was empowering, despite the complexity of the process. For others, the novelty quickly eroded into an understanding that this was not a “some assembly required” process.50

Perceived Discrimination and Prejudice 

The Canadian Study also revealed that many SRLs felt discriminated against during the process. One survey respondent noted, “Even in small claims court, judges and lawyers regard SRLs as a nuisance—they are no more welcome than they are in criminal court.” Another said, “My biggest disappointment—and surprise— is the overwhelming amount of prejudice I have encountered. I have not been taken seriously by both lawyers and judges."51 

Procedural Experience 

The Canadian Study noted that SRLs’ procedural experience (completion of the court forms, including those online) was as important as the ultimate outcome.52 Similar to the experiences of SRLs in the United States, the Canadian SRLs experienced frustration with the substantive material provided (online information and resources), despite the court’s best efforts to provide such information. The quality of the material varied between the courts, without much guidance regarding how to prioritize the vast amount of information.53

Court Staff Responses 

The Canadian Study also surveyed court staff. According to the researchers, the staff appeared relieved to have a mechanism (the survey) that provided a means to vent, expressing frustration with the onslaught of SRLs and their impact on the workload of the court and program staff.54 Ironically, the perceptions and frustrations of many staff members mirrored those of the SRLs: 

(1) there are unrealistic expectations regarding the process and what the staff could accomplish for SRLs; and 

(2) staff is unable to provide the necessary assistance and they have had negative experiences in the courtroom and with the judge due to miscommunications and misunderstanding. 

According to one respondent, “The emotional baggage that [SRLs] come in with is only matched by our own.”55

The frustration experienced by Canadian court staff did not appear to be much different from that of Colorado court staff and Sherlocks; the stress and emotional toll on the court staff appears equally high in both countries.56 The Canadian Study noted that existing problems were compounded by increased staff turnover and transitional positions, which resulted in the need to regularly train new staff to quickly learn the process and procedures.57 Staff complained about the difficulty in distinguishing between “legal information” and “legal advice,” and the ability to perform their role satisfactorily with little or no understanding of what information they were legally allowed to verbally provide to SRLs.58 The staff and clerks noted that the added emotional stress of having to refuse to give obviously needed advice to SRLs, coupled with the curiosity as to whether they could exercise “discretion” where an SRL was more sympathetic (or more pleasant), contributed to their overall negative experience.59 

Both court staff and SRLs complained about the need to become familiar with the fluctuating court procedures and relevant law. SRLs also said they received misinformation from staff, as well as inconsistent information from judges and the staff.60

Mediation and the Study 

The Canadian Study noted an increase in SRLs participating in court-based mediation. Legal costs were cited as the primary reason:

[SRLs] say that fees are astronomical and by the time they are through with legal costs, there are not many assets left . . . (and) more recently, there is this huge mistrust of lawyers, because they’ve spoken with people with bad experiences or have themselves had a previous bad experience.61

Mediation was suggested as a valuable option once legal action began.

SRLs in the study had limited knowledge about the mediation process and the mediator’s role. Few SRLs knew what mediation was or what it involved, and some specifically noted that mediation was never offered to them. To the extent that SRLs had the desire to employ mediation, they encountered opposition from the other side.62 Researchers concluded that SRLs may have had a case that could be easily resolved, but could not do so due to a misunderstanding of the alternative options available for resolution.63 Many Canadian SRLs experienced a common frustration that had been expressed by SRLs in the United States.64 The study noted that:

a culture of opposition to mediation [existed] among the legal profession, [and SRLs were] either discouraged from mediation by their own lawyer or rebuffed by the lawyer on the other side. Some complained that even when they asked about mediation, their legal counsel (if they were represented at the time) or counsel on the other side did not take it seriously. Some complained that mediation was simply used as an opportunity to stall by experienced parties or counsel.65

According to one respondent:

The lawyers are making a farce out of mediation. . . . [T]he present mediation system does not work. Lawyers are treating it as a silly game and thinking of ways to beat the system. They are making a mockery of what should have been a good solution. Litigation lawyers do not want it to work. . . . [W]hat is the advantage to them? . . . I think if I had been allowed [to participate] in the mediation I would have been able to settle at that time.66

The Canadian Solution

Some of the preliminary recommendations based on the Canadian Study are summarized here.

For the courts: 

1. Provide judicial education and training to help judges gain a better understanding of the SRL’s perspective, and to work toward a greater understanding of the SRL’s inherent needs. This would include effective communication and facilitation skills, along with stress-reduction strategies.

2. Provide appropriate training to help judges identify and manage vexatious and disruptive SRLs. 

3. Take into account the demands of dealing with SRLs when making judicial appointments, particularly to the family bench. 

4. Create a code of conduct that establishes protocols for dealing with the difficulties and problems of SRLs.67

For the bar: 

1. Create a legal culture paradigm shift to acknowledge that the volume of SRLs is not decreasing anytime soon, and they are self-represented mainly because they have no choice. 

2. Give greater attention to the availability and use of unbundled legal services that may provide what SRLs need, if not what they want.68

For the community: 

1. Re-examine the attorney’s role, beginning with law school curriculum. 

2. Create a more comprehensive and collaborative partnership with the client, who has a greater understanding of modern day law process, albeit through Internet searches and television shows rather than formal academia. 

3. Give greater consideration to the role of legally trained professionals who are not licensed attorneys, and how they may help resolve the SRL dilemma.69

The Canadian Study recommended a shift from an adversarial model to a problem-solving model, including greater use of mediation. Notably, the study recommended the following:

[M]ove away from the adversarial model and a reorientation to problem-solving in a multi-professional context. This includes: more widespread, consistent and effectively enforced provision of mediation services, both inside and outside the courthouse; further, judicial education in the conduct of settlement conferences, including conferences in which one or both parties are self-represented; and the development of specialized services for SLRs that offer them assistance with negotiating and participating in mediation.70

Lessons Learned 

The Canadian Study cautions the United States, and particularly Colorado, to learn from its mistakes, and heeds us to listen. SRLs want options other than protracted, expensive litigation, especially because they cannot afford it. They want and need alternatives that allow them to control the outcome of their case as much as possible. They want and need alternatives that allow them to be heard and to tell their story as only they can. They want the option to mediate, but have been stymied because of gatekeepers who do not appreciate the benefits that quality mediation can provide to a litigant, self-represented or otherwise.

A Deeper Commitment to Mediation

Colorado has a rich history that has supported dispute resolution programs since the early 1970s and 1980s.71 Despite the widespread use and legislative encouragement72 of mediation, it is not actively embraced by many attorneys in the state.73 It is remarkable that nowhere in the 2008 Report, and in only a few instances in the 164-page 2014 Report, was there discussion of mediation as part of the ATJ dialogue.74 This observation bears discussion for a variety of reasons. 

First, mediation is a time-honored, respected option for resolving disputes, used throughout the United States and abroad. The DOJ makes use of mediation in many federal programs under its control.75 Recently, the Eastern District of New York developed a special mediation program to expedite the “Superstorm Sandy” cases.76 Colorado rural court judges have candidly expressed the opinion that without mediators, their courtrooms would collapse under the weight of the SRL matters.77 Many civil and domestic courts now refer cases to mediation before setting hearing dates.78

Second, the savings derived from successful volunteer mediation programs such as the Jefferson County Mediation Services Program (JCMS), located in the First Judicial District, benefit the courts, court staff, and litigants who cannot afford the cost of litigation or mediation.79 In 2013, twenty-eight agencies referred 1,613 cases to JCMS, where mediation services are provided through the volunteer work of 240 mediators of various backgrounds and experience.80 

Third, the Mediation Association of Colorado (theMAC), formerly known as the Colorado Council of Mediators and Organizations, is the oldest and largest nonprofit mediation organization in Colorado. Since 1983 and with more than 200 members, it has long supported the use of mediation as an alternative form of dispute resolution, and continually raises the bar for the profession by providing mandatory standards of best practices for its members and (aspirationally) to nonmember mediators throughout the state. The MAC’s standards were considered part of the ongoing discussions by the Office of Dispute Resolution Advisory Committee and its recently formed task force, for the currently proposed standards for court-referred mediators.81 The Homeowners Association (HOA) Information Office also referred to these standards when making its recommendations to the Colorado Legislature regarding a proposed HOA Roster of Mediators.82 

Finally, other private and public organizations (such as the Office of Dispute Resolution) and many individual private mediators offer mediation services and other forms of dispute resolution to the citizens of Colorado, providing litigants an efficient, effective, and party-determined process that reduces the time in court, as well as the costs involved in resolving a dispute.83 The availability of hundreds of mediators across the state makes the use of mediation for dispute resolution not only a viable option, but also one that should not be overlooked when considering solutions to the SRL dilemma or filling the “equal access gap.”

Mediation as a Component of Successful ATJ Schemes 

Counsel and the courts “should advise litigants or potential clients of alternative forms of dispute resolution that might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought, and counsel is obligated to listen to his/her client when they want to settle.”84 Modern-day litigants are more perceptive, and they want to be an active partner in the discussions and determinations of their disputes. Gone are the days when counsel was considered the expert and the client was regarded as the novice. New technologies (and the plethora of law related television shows, though not always accurate or realistic) have empowered litigants to learn more about the legal system, the process, and what attorneys do (or what SRLs think they do). SRLs should be allowed to exercise their statutory option to engage in mediation, and with counsel who can assist them, even in limited-representation capacities, on the path to resolution.85 Short of that, SRLs merit the ability to engage in mediation across the table from an attorney who honors the purpose and intent of the facilitative mediation process, and who will work to resolve the matter on behalf of his or her client and the SRL.

Mediation is not perfect, but it does offer SRLs the ability to actively participate in their case and its outcome at a more palatable cost. As noted in the Canadian Study, there will always be complaints that a case did not settle, issues about mediator competency, and complaints that the mediation agreement had “no teeth.” However, the takeaway from the study is that mediation is gaining the public trust, but it needs to be offered on a more consistently professional and credible level and basis.86 

One Canadian businessman successfully mediated on two legal matters. He stated: “[T]he process was very fair. The ability to be heard without restrictions was so helpful, and healing. The positive outcomes for my side were a bonus.”87 

The Canadian Study noted that those prevented from mediation, due to opposing counsel resistance, asked why mediation was not mandatory. The upshot of the interviews, as they pertained to the use of mediation, was the hope that mediation would become an integral part of the litigation process. “[Mediation is] a star glowing on the horizon—but it never gets any closer.”88

Conclusion 

The U.S. Supreme Court recognized in Gideon that “lawyers in criminal courts are necessities, not luxuries.”89Without doubt, there are situations in which legal representation and advocacy are critical to equal access to justice for civil litigants. However, there also are many situations in which parties may find both ATJ and procedural fairness via alternative methods of dispute resolution that are more efficient, more effective, and far less costly. The Canadian Study reinforces the proposition that mediation can assist litigants (self-represented, indigent, modest means, or otherwise) to resolve disputes, thereby decreasing the caseload of the courts and the burden on the bench and staff. It is a solution and a tool whose potential should be given serious consideration. Mediation is recommended and employed at both federal and state levels. It is statutorily encouraged throughout the United States, including Colorado. Mediation gives parties an opportunity to play an active role in the resolution and conclusion of their legal matter. The data from our friends to the north support what the mediation profession has long advocated: mediation is effective, efficient, and is what SRLs want when given an informed choice. The Commission should consider a greater use of an underappreciated, but critical form of dispute resolution. By combining it with an increased use of unbundled legal services, attorneys can provide much-needed legal advice and support to SRLs as necessary and at a fee that is more palatable to the SRL, while allowing while allowing skilled mediators to facilitate respectful dialogue toward a mutually agreeable resolution. Mediation can help build a bridge across the access to justice gap.

Endnotes
1. Colorado ATJ Commission, “The Justice Crisis in Colorado: A Report on the Civil Legal Needs of the Indigent in Colorado” ( Jan. 2008) (2008 Report), www.cobar.org/repository/Access%20to%20Justice/ 08ATJ_FULLReport.pdf; Colorado ATJ Commission, “Justice Crisis in Colorado 2014: Report on Civil Legal Needs in Colorado” (Feb. 2014) (2014 Report), www.cobar.org/index.cfm/ID/22797/DPSEC/Colorado- 2014-Statewide-Hearings-Report.
2. MacFarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants” (May 2013) (Canadian Study), www.lsuc.on.ca/uploadedFiles/For_the_Public/ About_the_Law_Society/Convocation_Decisions/2014/Self-repre sented_project.pdf. The Canadian Study surveyed 259 SRLs from three provinces regarding their experiences as SRLs in the court system.
3. CRCP 121 § 1-1(5) and Committee Comment; CRCP 11(b); Colo. RPC 1.2(c); Espinosa and Taubman, “Limited Scope Representation Under the Proposed Amendment to C.R.C.P. 121, § 1-1,” 40 The Colorado Lawyer 89 (Nov. 2011); Espinosa, “Ethical Considerations When Providing Unbundled Legal Services,” 40 The Colorado Lawyer 75 (Sept. 2011).
4. See DOJ, “Address by Honorable John F. Kennedy, Attorney General of the United States” (Nov. 1, 1963), www.justice.gov/ag/rfkspeeches/ 1963/11-01-1963Pro.pdf.
5. Gideon v. Wainwright, 372 U.S. 335 (1963).
6. DOJ, “The Access to Justice Initiative” (2011), www.justice.gov/atj; “The Access to Justice Initiative of the U.S. Department of Justice: Four Year Anniversary Accomplishments” (2014), www.justice.gov/atj/accom plishments.pdf.
7. “The Access to Justice Initiative,” supra note 6 at 6-8.
8. Sandefur and Smyth, “Access Across America: First Report of the Civil Justice Infrastructure Mapping Project” 5 (Oct. 7, 2011). (See page 51 for Colorado statistics.)
9. Id. at 15.
10. Goldschmidt, “Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers”22-27 (National Center for State Courts, 1998), cdm16501.contentdm.oclc.org/cdm/ref/ collection/accessfair/id/106. See also Zuckerman, “Affordable Lawyer?” The Atlantic Monthly Group (2014), www.theatlantic.com/business/archive/ 2014/05/is-there-such-a-thing-as-an-affordable-lawyer/371746.
11. Third Branch News, “Telephone Interpreting Program: Access to Justice for All” (Feb. 25, 2014), news.uscourts.gov/telephone-interpretingprogram- access-justice-all.
12. Speech by Glenn Rawdon, LSC Technology Program Counsel, at the White House Forum on Increasing Access to Justice, on April 8, 2014, in Washington, DC. See “The Access to Justice Initiative,” supra note 6 at 12.
13. The Justice Index, a project of the National Center for ATJ at Cardozo Law School, www.justiceindex.org. The Justice Index examines the presence or absence in state justice systems of best practices for: (1) providing attorneys for people in poverty; (2) providing interpreters and translation for people with limited English proficiency; (3) providing support for people with disabilities; and (4) providing support for people proceeding without lawyers.
14. Clay et al., “Access to Justice Commission: 2004 Report,” 34 The Colorado Lawyer 42 ( Jan. 2005).
15. Id.
16. 2008 Report, supra note 1 at 7.
17. Id. at 5.
18. Id. at 10.
19. Id. at 16-17.
20. 2014 Report, supra note 1 at 1.
21. Id. at 8-10.
22. Id.
23. Id. at 28. 24. Id. at 24.
25. Id. at 26-27.
26. Code of Judicial Conduct, Rule 2.2.
27. Code of Judicial Conduct, Rule 2.6; 2014 Report, supra note 1 at 27.
28. 2014 Report, supra note 1 at 17, 18.
29. Id. at 11; 2008 Report, supra note 1 at 10.
30. 2014 Report, supra note 1 at 24, 67; Chief Justice Directive 13-01, Concerning Colorado Courts’ Self-Represented Litigant Assistance.
31. Canadian Study, supra note 2.
32. Id. at 8, 12, 39-42.
33. Id. at 8, 12, 44-47.
34. Id. at 9, 41, 48.
35. Id. at 9, 48.
36. Id. at 13, 41, 52, 82, 92-93, 122, 123-124.
37. Id. at 44.
38. Id. at 45.
39. Id.
40. Id.
41. Id.
42. Id. at 47.
43. Id. at 45.
44. Id.
45. Id. at 48.
46. Id. at 49
47. Id.
48. Id.
49. Id. at 50.
50. Id. at 51.
51. Id. at 52.
52. Id. at 56. (See pages 54 to 65 of the study for additional information specific to SRL experience with accessibility of court forms and procedural guides. See “The Court Guides Assessment project” at page 65 and Ap - pendix I to the study for additional information relating to the information provided by the courts and the evaluation of them.)
53. Id. at 67.
54. Id. at 68.
55. Id. at 69.
56. 2014 Report, supra note 1 at 12, 23-24, 67, 117, 121. See Goldschmidt et al., “Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers,” 46, 55 (American Judicature Society and State Justice Institute, 1998).
57. Canadian Study, supra note 2 at 69.
58. Id.
59. Id. at 71.
60. Id. at 73.
61. Id.
62. Id. at 74.
63. Id.
64. Based on the author’s own six years of experience as a mediator, many SRLs come to mediation (especially court-ordered) with complaints that their former attorney did not want to engage in mediation, or in - structed the client to refuse to agree to anything, so that the case may re - turn to court. See also 2014 Report, supra note 1 at 26.
65. Canadian Study, supra note 2 at 74.
66. Id.
67. Id. at 125-27. (See page 126 for code of conduct suggestions.)
68. Id. at 128.
69. Id.
70. Id. (Emphasis added.)
71. Briggs, “Alternative Dispute Resolution: ADR in Colorado: Past and Present,” 26 The Colorado Lawyer 97 ( June 1997).
72. Colorado Dispute Resolution Act, CRS §§ 13-22-301 et seq.; Colo. RPC 1.2, 1.4, 2.1, 3.2; CRCP 16(b)(6), 16.1(f ), 16.2(i).
73. For this article, the author assumes the mediator is sufficiently trained, skilled, and experienced in the field of mediation and in courtreferred cases.
74. 2014 Report, supra note 1 at 85.
75. DOJ, Civil Rights Division, Disability Rights Section, “ADA Mediation Program Questions and Answers,” www.ada.gov/mediation_ docs/mediation-q-a.htm (“In enacting the ADA, Congress specifically encouraged the use of alternative means of dispute resolution, including mediation, to resolve ADA disputes.”). See FBI Whistleblower Mediation Program, www.justice.gov/oarm/mediation; “Department of Justice Equal Employment Opportunity Strategic Plan 2008–12” at 16, www.justice. gov/jmd/eeos/strategicplan.pdf; Equal Employment Opportunity MediationGuidance: Notifying Requesters of the Mediation Services Offered by OGIS,” www.justice.gov/oip/foiapost/2010foiapost21.htm. See alsoOGIS website at www.justice.gov/oip/foiapost/2009foiapost20.htm:
The Open Government Act of 2007 amended the Freedom of Information Act (5 USC § 552) to create an Office of Government Information Services (OGIS) within the National Archives and Records Administration. . . . The OGIS will review policies and procedures of administrative agencies under FOIA, review agency compliance with FOIA, and recommend policy changes to the Congress and the President to improve the administration of FOIA. OGIS will also provide services to mediate disputes between FOIA requesters and Federal agencies.
76. “Eastern District in New York Looks to Mediators to Expedite Sandy Cases” ( June 26, 2014), news.uscourts.gov/eastern-district-newyork- looks-mediators-expedite-sandy-cases.
77. Spring Family Law Update, Panel Discussion on Unauthorized Practice of Law (April 25, 2014). See also Office of Dispute Resolution Advisory Committee (ODRAC), Memo to Chief Justice Bender on Proposal for Court-Referred Mediation (Oct. 29, 2012) (ODRAC Memo); Draft Policy Establishing Standards for Mediators Accepting Court- Referred Cases Pursuant to CRS § 13-22-311, submitted by the ODRAC Task Force (2014) (ODRAC Draft Policy).
78. See CBA Litigation Section, “Litigator’s Handbook of Colorado District Court Judges,” www.cobar.org/litihandbook/?ID=20015, in which many judges note their personal preference to send matters to mediation before setting permanent orders, trial, or hearing dates; CRCP 16(b)(6), 16.1(f ), 16.2(i).
79. JCMS assisted 4,312 people directly involved, and 6,708 were affected by the program’s work (children, neighbors, co-workers, etc.). Volunteer mediators come to JCMS trained in mediation and have varied professional backgrounds, including communication, education, environmental sciences, health, human resources, law, counseling and business. For the most current report, see “Mediation Services Program Report for 2013” (JCMS Report), jeffco.us/mediation-services/about.
80. JCMS Report, supra note 79 at 8.
81. ODRAC Memo, supra note 77 at 3; ODRAC Draft Policy, supra note 77.
82. “Report to the Legislature on the 2013 Study of Comparable HOA Information and Resource Centers, offered in compliance with CRS § 12- 61-406.7(1)(d)-(e) (2013)” at 3, 15-17 (2013), cdn.colorado.gov/cs/Satel lite?blobcol=urldata &blobheadername1=Content-Disposition&blob headername2=Content-Type&blobheadervalue1=inline%3B+filename %3D%22Report+to+the+Legislature+-+2013+Study+of+Comparable+ HOA+Information+and+Resource+Centers.pdf%22&blobheadervalue2= application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere= 1251938270322&ssbinary=true.
83. The Office of Dispute Resolution, created in 1983, originally provided all court-referred mediation to indigent and low-income litigants, pursuant to CRS §§ 13-22-301 et seq. The statute has since been modified to expand the availability of private mediators and mediation organizations to mediate court referred matters. CRS § 13-22-311.
84. Colo. RPC 1.2, 1.4, 2.1; CRCP 16(b)(6), 16(f ), 16.2(i).
85. CRS § 13-22-311.
86. Canadian Study, supra note 2 at 75.
87. Id.
88. Id.
89. Gideon, 372 U.S. at 344. n

Biography


Robyn E. McDonald, Esq. is an avid fly fisher, mediator and arbitrator in private practice with McDonald Mediation Group, LLC; she is a licensed attorney in California and in-house counsel in Colorado. She mediates extensively in Colorado and offers ADR services throughout the Rocky Mountain Region. She is the President and a Professional Member of the Mediation Association of Colorado, Chair of the First Judicial District Access to Justice Committee and Director of the First Judicial District Access to Justice Mediation Program Pilot Project. She is a Founding Member of the Academy of Professional Family Mediators, a member of the Modest Means Attorney List Super Committee, established by Colorado Supreme Court Chief Justice Nancy Rice, and a member of the Jefferson County Mediation Services Advisory Committee.

 

 

 



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