Mediation As a Means of Access to Justice

I keep a famous cartoon on my desk from The New Yorker magazine. It shows a client sitting across a desk from his lawyer. The lawyer has been reviewing a set of documents and the client looks surprised when the lawyer says “You have a pretty good case, Mr. Pitkin. How much justice can you afford?”

Let’s face it: legal services are a resource just like anything else. If a client is prepared to pay enough money they can retain the brightest legal talent around. But what about those clients who can’t afford to pay thousands of dollars for a lawyer to champion their cause or defend them against a spurious claim?

The easy answer is to say that attorneys should provide more pro bono services. There’s a place for that – but it’s unlikely the supply of pro bono services will ever catch up to the legal needs of indigent clients. Attorneys are service providers. When consumers can’t afford to pay for their services, are attorneys any different than doctors? Or dentists? Or car mechanics? Few auto mechanics offer to fix cars for underserved populations who can’t afford their services. But we view doctors and lawyers differently. We are professionals. Doctors have a unique, regulated access to highly-skilled care that can make the difference between life and death. Lawyers have the skills and training that can make the difference between financial ruin and success. But lawyers have to be careful. Legal publishers aren’t knocking on our doors to discount their charges because we are doing pro bono work. Our landlords don’t care whether or not we collect for our services. PG&E won’t cut us any slack on our utility bills; our insurers won’t discount our premiums and our staff probably won’t take a pay cut just because we are doing pro bono work. A philosophical discussion about the propriety, need or obligation of attorneys to provide pro bono services is outside the scope of this article, but the following point is self-evident: Legal services are a resource just like everything else. We may somehow feel differently about legal services because they involve significant issues of fairness, right and wrong or inalienable rights. But in the final analysis legal services are still exactly that: services.

Litigators have a perfect knowledge of the cost, expense and emotional turmoil involved in litigation. In every lawsuit someone is going to win, someone is going to lose, in some cases everyone is going to lose and ultimately someone will pay the price of all that litigation. Notwithstanding all this, an underserved person who is unable to afford legal representation may quickly find themself outgunned, outmaneuvered and outflanked in any legal dispute where a well-heeled opponent hires a capable, experienced lawyer. Indigent clients can self-represent, but it’s not a fair fight. Experienced counsel often have a field day in lawsuits where an unsophisticated, indigent client is self-represented.

Recognizing the need for access to justice for all persons (including those who cannot afford to pay for legal services) several non-profit, volunteer ADR (Alternative Dispute Resolution) programs have emerged in the San Francisco Bay Area (and other areas of the country) over the past several decades. See sidebar on low-cost legal resources.

There can be a perception that the mediation services offered by these organizations may be sub-par or inferior because these organizations do not charge (or charge very little) for their services. Such a perception is inaccurate. In addition to providing mediation services, these non-profit groups focus on providing the public with training in mediation and in conflict resolution; several of them provide 40-hour mediator training programs. The Peninsula Conflict Resolution Center trains incarcerated persons in communications skills. In addition to providing people with enhanced skills for resolving their own conflicts, these outfits provide parties with trained mediators in connection with more difficult disputes. Many highly trained mediators periodically participate in these programs on a pro bono basis for the purpose of “giving back” or “paying it forward.” Experience levels between mediators can vary, but this is also true with privately-hired mediators. A key benefit of private mediation over community mediation is that parties have quick and full access to mediator schedules; parties also have a high degree of control over mediator selection. However, nobody should think that just because they participate in a community-based mediation through one of these services they will be unable to work with a skilled, trained mediator.[1]

What about litigated cases? Indigent or underserved populations may find themselves unable to bear the significant attorneys fees which may be required in civil cases. Contingency arrangements can address this problem in some cases. But many cases may not be suitable for a contingency fee arrangement (such as in defending an indigent person who is being sued or in bringing a case where there may be no prospective economic recovery such as one seeking a restraining order or a child custody dispute). In these kinds of civil cases indigent persons can quickly find themselves severely disadvantaged in comparison with their more financially able opponents.

Legal scholars and commentators have considered the prospect of using mediation as a point of access to justice for those who might not be equipped to access justice through traditional methods (i.e. through litigation). On the surface it seems like mediation would be an ideal means for indigent persons to access justice. But there are problems with that approach. Some litigation matters look to the future (such as a quiet title action, where litigation is necessary to get clear title to real property). Some look both forwards and backwards (such as a restraining order that relies on past actions to provide future stability or protection or an award of damages based on a past tort as a means of funding future medical treatment). But most kinds of cases involving damage claims are highly focused on the past. In these cases someone was wronged, injured or damaged. In trying to be made whole, a plaintiff needs to bring the defendant to the bargaining table. In most situations the defendant “wins” as long as the plaintiff does nothing. In these situations a defendant may be highly incentivized to resist or rebuff early settlement or mediation attempts, because if the plaintiff lacks the emotional or financial strength to withstand the rigors of litigation then if the plaintiff does nothing, things will never change and the defendant will “win” by never having to fully deal with the plaintiff’s claims or losses.

Ron Kelly is an established legal trainer, mediator and arbitrator who is based in the Bay Area. Several years ago I attended one of his seminars that was geared towards effective marketing of mediation services. During the seminar Ron talked about his efforts to build his mediation practice following the Oakland Hills fire. In the aftermath of the Oakland Hills fire many homeowners found they were underinsured and that they had potentially high dollar claims for their losses due to the fire. Ron knew that parties could save a great deal of money in attorneys fees by mediating early. Ron decided the best way to market his practice was to “get the word out” to people who might have a lot of high dollar litigation claims – but who might also want to save tens or hundreds of thousands of dollars in legal bills. Ron actually took out advertising spots on bus benches in the areas where the Oakland Hills fire had burned down lots of homes. He got his bench ads up and running and then waited for his phone to start ringing.

It never happened. Almost nobody called. This greatly puzzled Ron, and he just couldn’t understand why nobody wanted to save the time and expense of hiring counsel and litigating their claims when they could just move straight to settlement discussions. Only after many years of mediating cases did Ron learn the truth: Parties often don’t have any interest in mediating until there’s no other option, or until they’ve felt the financial sting of mounting attorneys fees during litigation. Ron found out that oftentimes parties have to “go through the process” before they are ready to mediate; this process often involves a substantial expenditure of time and money in seeking justice through the court system until these parties get to the point where a compromised settlement through mediation looks like a better alternative than continuing with traditional litigation.

It was an unexpected lesson. From a purely rational point of view, so long as a case can be adequately worked up without formal discovery, everybody should mediate first and then litigate if the case can’t be settled. However, Ron learned the reverse is true: many, many cases are litigated for a period of time before both sides are ready to mediate.

The application of this principle to indigent persons is clear. Without the “softening up” effect of litigation, some cases might not ever be ready for mediation. This isn’t true in every case; some lawyers and clients are ready and willing to mediate before the first shot ever gets fired across the bow. But other clients and counsel just won’t be ready to mediate until a certain amount of litigation has occurred.

One scholarly law review article has closely examined the benefits to indigent clients of both mandatory and voluntary mediation.[2] But this law review article is mostly concerned with identifying and describing the problems, challenges and shortfalls connected with mediating with indigent persons in a litigation context. It really doesn’t offer many answers as to how mediation could potentially serve as an additional access point for indigent litigants. Instead, it concludes that “parties who are represented by attorneys are much more likely to achieve better results than self-represented parties.” (See page 8). No surprise there. This observation matches what most litigators would undoubtedly conclude on their own but it does nothing to advance access to justice by indigent persons through mediation. If anything, it highlights the stark reality that in most cases indigent persons just aren’t going to fare as well as their represented opponents in litigated matters.[3]

What’s the take-away? Fortunately most legal claims by (and against) indigent persons will occur in the kinds of legal matters that are served by community mediation. Ideally most indigent persons won’t be involved in high-dollar claims where their entire financial future is at stake – or if they are involved in such litigation then hopefully a contingency fee arrangement may serve to provide them with experienced counsel. Unfortunately for such persons, unless they can secure pro bono counsel, most indigent persons involved in any kind of significant civil litigation will, to a large extent, be left to fend for themselves in the same manner they are left to fend for themselves with most other kinds of resource allocations practiced by the societies and communities where such indigent persons live. Where circumstances suggest that early mediation may be appropriate, then with any luck such indigent persons and their more affluent opponents will all benefit from the significant cost savings that can be realized through effective early mediation.