Representation in Mediation: What We Know From Empirical Research

Introduction I. Empirical Findings Regarding Representation in Mediation A. How Many Parties Are Unrepresented in Mediation? B. What Effect Does Representation Have on the Mediation Process? 1. Does Representation Enhance Party Preparation for Mediation? 2. Does Representation Enhance the Fairness of the Mediation Process and Reduce Pressures to Settle? 3. Does Representation Enhance or Limit Party Participation and Expression of Views? a. Opportunities for Parties' Discussion and Improved Understanding b. Parties' Participation in Mediation and Chance to Tell Their Views c. Relationships Among Voice, Participation and Assessments 4. Does Representation Make the Mediation Process More or Less Contentious? C. What Effect Does Representation Have on Mediation Outcomes? 1. Does Representation Facilitate or Impede Settlement? 2. Does Representation Lead to Better or More Fair Settlements? Conclusion INTRODUCTION Across jurisdictions, one or both parties typically are unrepresented (1) in a minority of filed general civil cases (3% to 48%), in a majority of domestic relations cases (35% to 95%), and in most cases in small claims and housing courts (79% to 99%). (2) Whether unrepresented litigants are able to obtain a fair result in litigation is a major concern, given their lack of information about court forms and processes, lack of knowledge of substantive law and rules of evidence and procedure, and lack of case presentation and negotiation skills. (3) Additional concerns are the potential burdens that large numbers of unrepresented parties might pose for court staff and judges. (4) Proposals to enhance unrepresented civil litigants' access to meaningful justice can be grouped into three sets. One set recommends that courts do more to facilitate unrepresented litigants' ability to handle their cases themselves, such as by providing instructions, simplified forms, and increased assistance from court personnel or volunteers. (5) Another set of proposals urges courts to provide alternative dispute resolution ("ADR") programs, particularly mediation, for unrepresented litigants. (6) The third set of proposals focuses on increasing the availability of legal representation. (7) Proposals to expand legal representation generally are silent as to whether they envision providing counsel for ADR proceedings. The ABA proposal does address this issue, but different positions are expressed in different documents. In the report accompanying the ABA resolution, the provision of counsel is limited to fora that occur in the "litigation context" and in which the process is "adversarial." (8) In another document, however, the recommendation is to provide "a full range of services in all forums" including, among others, "representation in negotiation and alternative dispute resolution." (9) Thus, the ABA proposal presumably includes providing counsel for adversarial court-connected ADR proceedings like arbitration, although it is not clear whether it extends to "non-adversarial" court-connected ADR proceedings like mediation or neutral evaluation. (10) In practice, however, there is no distinct line between "adversarial" and "non-adversarial" processes. Although the mediation process itself may be considered non-adversarial, it often takes place in the middle of adversarial litigation. In many courts, mandatory mediation is a formal step in the court management of litigation; (11) if the parties do not settle in mediation, they are immediately back in the adversarial "litigotiation" process. (12) Just as there is no clear separation between negotiation and litigation, there is no clear separation between mediation and either negotiation or litigation. (13) The assumption that representation is not needed in mediation appears to underlie proposals that exclude mediation from the processes for which counsel should be provided, as well as proposals that urge courts to provide mediation programs for unrepresented litigants. …