ADR, Access to Justice and the RPM

The Reasonable Person Model Project by Karen Hollett

I have been mulling lately on the connections between ADR & access to justice and how the “reasonable person model” (RPM) might helpfully inform a dialogue. Some ADR professionals may be wary of such a dialogue because the “solution” may be posed as free or cut-rate ADR processes. Resistance to such a scenario is natural. These suggestions may diminish, and perhaps feel threatening to, the ADR profession. I believe, however, that the access to justice debate can benefit, in a much broader way, from the insights of those, like mediators, who work outside the “system” and that such a dialogue is helpful in many ways.

I suggest this because any discussion of “access to justice” should start with “what is justice.” Empirical research tells us that the process is often as important, perhaps more, than the outcome for litigants. The RPM explains why this is so. It suggests that an environment where people feel respected and heard and are able to participate in resolving problems is the kind of environment where people will flourish. On the other hand, an environment in which people feel they are not respected, one where they are unable to find their way and which will challenge their sense of competence, will not bring out the best in people. Mediators understand from their experiences that the process can have very positive effects on the parties. I like to think of this as RPM in action. Their personal experiences results in a very different kind of knowing. Seeing sometimes is believing.

As well, mediators have an advantage because they are generally experienced at letting the parties control their own dispute. In order to mediate, you really do need to set aside the attitude that you know – better than the parties – about how their dispute aka problem should be resolved. This is where the magic of the process lies. Granted, as I have explored in previous posts, this is not an easy thing to do, particularly for lawyers, but I suggest that mediators do have the advantage here. If we look at the “system” as the “problem” to be solved, this mindset will be helpful to the dialogue.

A system geared to the needs of the participants may look very different from the traditional legal processes. The process of getting there could benefit from the perspectives of mediators. There is so much to think about here, but these are some of the ideas I believe are worth exploring.

                       

Karen Hollett

Karen Hollett is a lawyer, arbitrator and mediator working in Canada. She can can be reached at The Centre for Innovative Dispute Resolution in St. John's Newfoundland, Canada. MORE >