The words “Equal Justice Under Law“ are inscribed high atop the structure that houses the United States Supreme Court.  It is a reflection of America’s hope for the realization of a legal system that is free of bias, prejudice, and elitism. And yet, throughout the brief history of this nation the blessing of justice and the sting of injustice have co-existed in a fierce struggle to determine which contender would emerge in victory. The field of alternative dispute resolution, and mediation in particular, has gradually positioned itself as a viable adjunct to America’s civil justice system. It is therefore time to consider the extent to which mediation serves to advance or impede the goal of achieving equal justice for every American.
America is a country of massive economic wealth and power. And yet, abject poverty continues to maintain its stranglehold upon many urban and rural communities. In 1964, the late President Lyndon B. Johnson launched the “War on Poverty” in response to record numbers of individuals living in a state of destitution. Notable gains achieved by Johnson’s administration were impressive though short-lived. By 1977, there were an estimated 14.5 million adults and 10.2 million children living below the poverty level as determined by the U.S. Census Bureau. As of March 2007, the figures increased to roughly 23.9 million adults and 13.3 million children.  Consider the issue from a global perspective. The estimated number of Americans currently living below the poverty level is roughly equal to the aggregate populations of Hong Kong, Sweden, Greece, New Zealand, Denmark, and The Bahamas.  There should be no question in anyone’s mind that poverty in America has assumed epidemic proportions.
The correlation between poverty and Justice is equally disheartening. To be poor in 21st century America means that, more often than not, a person will be deprived of full access to the legal system. In most instances the poor cannot afford the cost of retaining a competent lawyer to aggressively prosecute or defend a lawsuit. The poor cannot afford to take meager financial resources allocated for food and shelter and divert those funds to pay court filing fees and other expenses associated with litigation. For the millions who live in poverty the promise of equal justice typically remains a dream denied.
Separate But Unequal Systems
As the numbers of impoverished Americans continue to rise we are also witnessing a significant increase of the costs associated with financing a civil lawsuit. The proliferation of court filing fees, attorney’s fees, expert witness and consulting fees, and the price of conducting depositions and other forms of “discovery” are just a few areas where expenses can be exorbitant. It is little wonder that in many instances mediation has become an especially attractive alternative to litigation. Mediation is less expensive and less adversarial than litigation. It is informal, private, and it is expedient. In California, many court-annexed and/or court supervised mediation programs require that mediators donate a fixed number of hours for each mediation session. Some courts impose a cap on the hourly fee that a mediator may charge for his or her services; rates that are substantially less than the hourly rates normally charged by similarly-situated mediators. Community-based mediation programs often provide mediation services at a flat, fixed rate that is far below market prices. Mediation certainly has its advantages. But all that glitters is not gold.
Mediation is not an adjudicatory process. Mediators are not sworn officers of the court. A mediator does not render a decision on the merits of the controversy. Similarly, mediators are precluded from compiling a record of the mediation session due to confidentiality laws and rules governing the inadmissibility of settlement negotiations. As a consequence there is no written decision or legal “opinion” prepared to memorialize the substance of each mediation session.  In contrast, a civil court hearing or trial frequently (though not always) results in the formulation of a written decision which provides a permanent record of the proceedings. At the appellate level the court’s decision or opinion may serve to establish precedent and provide direction for the disposition of future, similar controversies. The written decision is usually made a part of the court’s file and therefore open to dissemination by the general public.
Scores of individuals under the advice of legal counsel make an informed decision to submit their disputes to mediation. But there are also many cases that gravitate towards mediation primarily due to financial considerations. Some of those cases involve matters that do not raise profound or novel legal controversies. On the other hand, I am inclined to believe that a sizeable percentage of those disputes do in fact present important public policy issues. Take for example race, age, and gender discrimination cases, wrongful termination and sexual harassment disputes, products liability, landlord/tenant, and other such controversies submitted to mediation. Many of those cases raise potentially precedent-setting issues; cases that could foreseeably impact the lives of millions of Americans. Arguably some of those disputes should and could have been decided before a court of law. But the question I must ask is how many of those cases were mediated chiefly because one or more of the principal parties could not afford to finance a civil lawsuit?
Depending in part upon the nature of the dispute and the relationship between the parties, the absence of a written opinion can be one of the most significant and adverse consequences of choosing mediation rather than litigation. If the dispute that we know today as Roe v. Wade had been mediated in 1973 without the resultant written judicial opinion, there is no doubt that the landscape of contemporary law in the field of individual privacy rights and abortion might be entirely different today.  Consider the far-reaching societal implications if Brown v. Board of Education of Topeka Kansas had been mediated in 1954?  How about Miranda v. Arizona  ; Gideon v. Wainwright  ; and Yick Wo v. Hopkins?  The rights and interests of scores of Americans have been deeply impacted by these and many other judicial decisions. Reasonable minds may differ over the correctness of those particular decisions but most would agree that, for better or worse, those cases have had a profound effect upon the course of American civic life.
We should also be concerned about the legal and social ramifications stemming from the marked decline in the percentage of civil cases that are concluded by trial. In 1970, 10% of the 25,451 tort cases filed in federal court were decided by trial. In 1980, the percentage of all tort cases decided by trial dropped to 8%, in 1990 it was 5%. In 2000, there were 41,696 tort cases filed in Federal trial courts but the number decided by trial was just 3%. 
There is a similar trend emerging in some state courts. In California, during the 1997-1998 fiscal year there were 3,120 civil cases (excluding probate and mental health) decided by jury trial in the unlimited jurisdiction division of the superior courts. During 2001-2002 the number of jury trials declined to 1,910. And during the 2006-2007 fiscal year, the number of jury trials had declined precipitously to 1,333.  What are the implications for the poor if these trends continue? Given the ever-widening economic and class divisions between Americans, is the landscape of jurisprudence rapidly eroding in a downhill slide towards the creation of yet another class-based, separate but unequal system of justice? Will the ability to pursue a civil lawsuit eventually become the exclusive province of the “haves” while the “have-nots” are relegated to alternative forms of dispute resolution or nothing at all?
Remembering the Poor
In January 2003, I attended the 102nd Earl Lectures and Pastoral Conference sponsored by the Pacific School of Religion in Berkeley. One of the distinguished presenters was Father Gustavo Gutiérrez, a Catholic priest considered by many as the leading expositor and founder of liberation theology. The cavernous hall was overflowing with a diverse crowd of more than 500 clergy and laypersons buzzing with anticipation.
Following his introduction Father Gutiérrez walked to the pulpit amidst a thunderous applause. Then the room fell silent…you could hear a pin drop as he somewhat hesitantly adjusted the microphone. His lecture was entitled “Remember the Poor.” After a few preliminary remarks Father Gutierrez opened the Holy Bible and began reading:
“Blessed are the poor in spirit, for theirs is the kingdom of heaven.
Blessed are those who mourn, for they shall be comforted.
Blessed are the meek, for they shall inherit the earth.
Blessed are those who hunger for righteousness, for they shall be filled…”
As I glanced around the room it was evident that a spirit of Hope and promise began to dwell within the congregation. Father Gutierrez spoke with a sense of power and authority not his own. His prophetic message extended the following call to action: In all that we do and every place that we go we must remember the poor. We must remain ever cognizant of the plight of the poor so that we do not forget the depth and magnitude of their daily struggles to survive. Every man, woman, and child must stand in solidarity with the poor and others who suffer from misery and injustice anywhere in the world. As we remember the poor we must also reflect upon the life and ministry of Jesus Christ and the model of love that He exhibited towards those who society considered as “the least among us.”
That simple yet profound message may also be instructive for those who labor in various capacities within the legal profession. When I survey the history of American law I am convinced that in many respects our legal system has effectively disinherited the poor. If the legal disabilities affecting the poor continue unabated then there is a reasonably foreseeable possibility that opportunities for the poor to litigate their disputes could eventually cease to exist. An individual’s ability to seek justice in a court of law should not be marginalized to a “pay to play” proposition.
As things now stand we are moving gradually towards the day that the poor will not select mediation as much as mediation will select the poor. Today the promise of equal justice for all remains little more than a distant hope for many who find themselves alienated from economic sustenance by the chasm which is poverty. Mediation was never intended to replace litigation –neither for the wealthy nor for the poor. Mediation is an effective and viable means of resolving some disputes, but mediation is not an end unto itself. Some conflicts will not be resolved at mediation and some disputes will not reach an equitable result in a court of law. But neither a mediated settlement nor a court judgment are ends in and of themselves. The end that must by pursued for every controversy must be Justice. Regrettably, under the prevailing mediation structure the goal of securing Justice for the disputants is not indelibly written into the equation. We cannot lose sight of the notion that Justice must remain the central objective of people who hunger and thirst for freedom, liberation, and equality.
When evaluated by any objective standard the level of poverty in the United States is nothing short of deplorable. People of goodwill must therefore continue to advocate for increased funding for legal assistance for the poor. We must encourage legal professionals to continue providing pro bono services and “sliding-scale” legal fees to the fullest extent reasonably possible. This is not to deny the many positive efforts of the women and men who donate long hours to serve the poor through their local bar associations, legal aid societies, and related programs. They are truly providing a great and noble service. But it is time for a radical shift in public policy; a new paradigm that is rooted in equality of opportunity for everyone. Mitigating the causes and effects of an inaccessible legal system must be moved from the back burner and catapulted to its rightful place near the front of the American agenda. The time is ripe for a Justice “stimulus package” that will trigger comprehensive efforts to move public policy in a new and more humane direction.
The goal of equal justice for all is an attainable goal but we must have the moral courage to press the issue and accept nothing less. People of goodwill must speak truth to power and advocate for the interests of the poor. Justice for some, but not for all, is an injustice. Both as a matter of public policy and from an ethical standpoint our society cannot continue to sacrifice the goal of equal justice for the sake of short-term expediency and cost savings that are frequently associated with mediation. As a trained mediator I believe in the promise and the efficacy of mediation. But alternative forms of dispute resolution, including mediation, are not proxies for the dispensation of justice by a court of law. The letter of the law cannot reach its full potential until a new day emerges whereby the spirit of the law is applied equally to all persons without regard to an individual’s economic circumstances.
1 Caldwell v. Texas 137 U.S. 692 (1891) is believed to be one of the first judicial opinions where the U.S. Supreme Court used the phrase “…equal [and impartial] justice under law.”
2 Source: United States Bureau of the Census; “Poverty Status of People, by Age, Race, and Hispanic Origin:1959 to 2007.” [http://www.census.gov/hhes/www/poverty/ppublications.html] The figures cited do not include many individuals whose poverty status could not be ascertained, e.g., those who were incarcerated, persons confined to nursing homes, individuals residing in military barracks and college dormitories.
3 Source: The World Factbook published by the U.S. Central Intelligence Agency [www.cia.gov/library/publications/the- world-factbook/print. The estimated population of Hong Kong is 7 million, Sweden (9 mill.), Greece (11 mill.), New Zealand (4 mill.), Denmark (5.5 mill.), and The Bahamas (307,000). All figures are based upon population estimates as of July 2008.
4 A judicial opinion, in the traditional legal sense of the term, serves to memorialize for posterity the nature of the controversy, identity the parties and their attorneys, provide an analysis of the appropriate rule of law applied to the controversy, identify the legal issues under consideration by the court, and provide an explanation of the manner in which the dispute was resolved. In most state court civil lawsuits a full published opinion is only prepared following an appeal. Under the federal court system, opinions are usually published at both the trial and appellate levels.
5 The case concerned abortion and human reproductive privacy rights
6 Case concerned racial segregation in public schools
7 Concerning protection against self-incrimination
8 Concerning right to legal counsel for indigent criminal defendants
9 118 US 356 (1886) re: concerning racial discrimination concerning against Chinese-American laundry proprietors.
10 Source: “Federal Tort Trials” published by U.S. Department of Justice-Office of Justice Programs, Bureau of Justice Statistics; [http://www.ojp.gov/bjs/glance/tables/torttrialtab.htm].
11 Source: “2008 Court Statistics Report: Statewide Caseload Trends 1997-1998 through 2006-2007” published by The Judicial Council of California. Unlimited jurisdiction cases are defined as those matters involving a dispute where the amount in controversy is in excess of $25,000.
12 Matthew 5: 3-6 (NKJV)