Mediation, Self-Represented Parties, and Access to Justice: Getting There from Here

Mediation is enthusiastically promoted as a vehicle for providing access to justice. This is as true in developing countries as it is in the United States. For individuals, mediation promises autonomy, self-determination and empowerment; for courts, there is the lure of procedural and administrative reforms—reduced dockets and greater efficiencies. Unburdened with formal discovery, evidentiary and procedural rules, pleadings, and motions, mediation is thought to generate access to justice at a faster pace than litigation. Commentators sing its praises while bemoaning its underutilization. I argue that claims about mediation’s ability to provide access to justice should be more modest because mediation falls short on its original promise of being a voluntary process based on party self-determination. In what I label a “withering away of consent,” courts and legislatures have pushed hard to sell mediation as an access to justice opportunity, often without regard for the consensual nature of the process. Too often, this hard sell has negative consequences for individuals with disadvantaged economic status who navigate the legal system on their own. These are the self-represented parties who seek access to justice in the formal judicial system but then find themselves in mediation, a different, informal system than what has been institutionalized in the courts. The extent to which they receive justice from either system is unclear

When Is Law in Action?

In response to Pamela Foohey, When Faith Falls Short: Bankruptcy Decisions of Churches, 76 Ohio St. L.J. 1319 (2015)

Introduction: What We Know and Need to Know About the State of \u27Access to Justice\u27 Research

Ongoing, systematic research on civil legal needs and services is an essential component of improving the quality and availability of such services. Collaboration among researchers, legal services providers, and regulators will only become more important as innovations in the delivery of legal services progress. This volume brings together sixteen white papers by subject matter experts who assess what we know and need to know about various aspects of civil legal services delivery. The product of a partnership between the South Carolina Law Review and the ABA Commission on the Future of Legal Services, the collection is intended to serve as a resource for policymakers and legal services providers, and to identify issues and priorities for further research

Reconceptualizing Access to Justice

This Article argues that the assumptions that underlie how we currently conceptualize equal access to justice ensure that we will never achieve it. Much scholarly attention has been paid to the problem of access to justice for lowincome people, which is typically defined as unmet legal need. Most of this attention focuses on the crisis in civil courts of unrepresented parties. These scholars suggest court-focused solutions centered on providing more lawyers and legal advice to help deal with this pro se crisis. But the vast majority of justiciable civil problems are resolved (or not) without any contact with the legal system or the use of lawyers. In the current access to justice framework, lawyers are solely providers of legal advice, guiding people through the legal system but with no role in ameliorating the underlying issue that caused the legal crisis in the first place. By conflating access to justice with access to the courts, current approaches both limit the reach of the lawyer’s interventions and entirely miss the vast majority of people struggling with civil justice problems This Article therefore argues that the current conception of access to justice must be redefined because it is missing a crucial component: an examination of the limitations of our current legal services model. Lawyers must reimagine their role in achieving equal access to justice by considering and applying the lessons learned from poverty law and public interest scholars on how attorneys can achieve justice for the poor. Poverty law scholars have long advocated for the use of a wide range of lawyering skills in the broader fight against poverty and injustice, but this scholarly debate is entirely absent from our consideration of how to solve the problem of access to justice for low-income people. Applying lessons from poverty law reveals that lawyers must think creatively about their own ability to effectively intervene to solve civil justice problems beyond the confines of the courthouse