Legal systems round the globe are grounded in the rule of law and in theory, justice is available readily and equally to all. In practice, however, access to justice is easier for some than for others, and for those unable to afford legal services, justice may be difficult to obtain. It can, however, be achieved by systematically removing the unnecessary, simplifying the necessary, and rethinking processes from the standpoints of those who must use them. According to recent reports, courts throughout the world are being flooded by unrepresented litigants. While a number of factors influence the existence of unrepresented litigants generally, the common perception is that the recent surge in the number of unrepresented litigants appearing in Courts can be attributed to the ever-increasing price of litigation. On this view, litigants are being driven to forgo the services of counsel because of both the fees of lawyers themselves and the fees involved in initiating and pursuing a claim in court.
Irrespective of the reasons for appearing without counsel, unrepresented litigants pose a number of issues for the proper administration of justice. The most notable issues associated with unrepresented litigants are its undesired impact on judicial efficiency and neutrality, as well as the often unarticulated, effect the lack of representation has on the litigant’s access to justice and the interests they are seeking to protect. As Justice Winkelmann observed, the right to self-representation offers theoretical access to the courts for litigants that may in reality be illusory.
Mediation, it was thought, would improve this situation. It was believed that if unrepresented litigants could be spared the ordeal of navigating court rules, instead talking informally under the auspices of a neutral third-party, better results could be achieved with less trauma. Dispute system designers, in pleading mediation’s cause, drew heavily from theories of procedural justice, de-emphasizing and rendering questions of substantive or distributive justice largely moot. Focusing on aspects of informal dispute resolution that are thought to improve participants’ subjective experiences (autonomy, emotional relaxation, and creative collaboration), ADR advocates asserted that increased mediation between unrepresented litigants meant an increase in “access to justice.” As a result, mandatory Alternative Dispute Resolution processes, such as mediation, have been proposed as a starting point for finding more permanent solutions to the surging tide of unrepresented litigants in many jurisdictions. Although this would, in theory, reduce the direct burden on courts, there are a number of significant objections to such a course. In addition to the traditional opposition to the concept of mandatory mediation, the main problem with mediation involving unrepresented parties is that such parties are most likely to be open to dispute resolution. A related problem is that there can be significant information gaps for a lay-litigant: the unrepresented party is less likely to be able to collect and analyze information needed to predict the outcome of litigation and be disadvantaged in the bargaining process. Therefore, it is unclear whether the substantive fairness concerns of an unrepresented party will be completely eliminated.
Moreover, the involvement of unrepresented parties in the mediation program may mean that the efficiency and neutrality issues faced by courts are simply shifted from judges to mediators. Like judges, mediators, are required to be neutral. However, the mediator’s position is complicated by internal occupational debates about the extent to which the mediator must deviate from facilitation to evaluation and whether substantive fairness of outcome is even a concern of the mediator. Therefore, in some ways the challenges presented by lay-litigants are less immediate for a judge as, unlike a mediator, the traditional role of judges is to mitigate the impact of differences in the representation of the parties.
When considering these options, it is important not to combine the need to reduce the burden on civil courts with the main purpose of the system – the provision of justice (both substantive and procedural). The former is simply a means to the latter end. For mediation to play a role in reducing the burden on unrepresented parties in the civil justice system, significant changes in concepts and processes are required to meet the needs and weaknesses of unrepresented parties. Engler argues that one cannot maintain the traditional view of mediation while urging widespread use of mediation in settings involving unrepresented parties – The role of the mediator should be redefined with the goal of this ultimate justice in mind.
The degree to which the mediation process changes necessary to adequately account for and protect the interests of unrepresented parties is unclear. Central to that question is the extent to which the mediator’s role must be redefined. On the one hand, a lower level of change means that unrepresented parties receive enough information about the process, including that the mediator has no authority to impose a solution, and that they will not be treated adversely by the court should they fail to settle – an approach which would leave the mediation process itself largely intact. On the other hand, a more radical departure from the traditional view of mediation means that the objective fairness of the outcome is of utmost importance to the mediator and the mandatory application of the evaluation method. However, despite this appearance, there are ways to solve the problem of justice for merit without drastic changes to the mediation process. In some jurisdictions, mediators retain residual authority (either real or de facto) to terminate the mediation process if they believe that the litigant does not have enough information to make an informed settlement decision.
Other revised mediation processes also include fundamental changes in the traditional view of mediation. The presence of a second independent and neutral participant (other than the mediator) with detailed knowledge of the law and the subject can close the information gap that lay-litigants may encounter in a proceeding. This type of tailored advisory mediation provides more freedom for mediators to choose their own approach to the mediation process while maintaining neutrality. The extent to which these potential changes affect the mediation process will depend on the thresholds and guidelines for intervention by independent information providers. While their liberal involvement throughout the process would be a radical departure from a traditional mediation, another conception of their involvement is as a residual safety net of the sort described above – intervening only where they think one of the parties’ insufficient knowledge is being taken advantage of.
Alternative dispute resolution and, in particular, mediation provides an attractive opportunity to mitigate the impact of unrepresented parties on the courts. However, in dealing with such disputes, care must be taken to ensure that the problems confronting the traditional justice system are not simply transplanted to a new setting. The ultimate goal of the judicial system must remain achieving justice and ensuring equality of access to justice. Therefore, if mediation should be identified as a key tool to relieve pressure on civil courts, the traditional mediation process should be reconsidered to ensure that the needs of unrepresented individuals are met.
Jay Folberg explains that all the complaints that he has heard about mediation have not come from the general public, but from professionals who are concerned about lines being crossed...By Jay Folberg