A Theory of Access to Justice

This Article draws upon three observations: 1) the vast majority of disputes involve low-income litigants; 2) the vast majority of public and private resources of dispute resolution are allocated to disputes involving wealthy individuals and organizations; 3) any principled moral or ethical analysis demonstrates that the stakes are much higher in disputes involving low-income disputants than in disputes involving affluent individuals or organizations. Thus, the legal matters that attract a minute percentage of dispute resolution resources implicate issues of food and shelter, life and death. The Article describes a methodology - called Resources of Dispute Resolution or RDR - for describing why this is the case, and then illustrates the operation of RDR theory in a range of cases: commercial disputes, landlord tenant matters, government benefits, personal injury, family law, and school desegregation cases. A range of enablers and justifications submerge from view the profoundly disparate allocation of the resources of dispute resolution. These are invariably misleading or false, such as the supposed greater complexity of commercial matters and the neutral operation of jurisdictional rules. The Article concludes by considering two relatively new methods of dispute resolution - mediation and community lawyering - and how, possibly, they can break the stranglehold of the principles of RDR

The Holmes School of Law: A Proposal to Reform Legal Education through Realism

This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about law in fact —how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all legal education ignores law as experienced by low-income people. The article concludes with responses to anticipated objections to the proposal

Mapping the World: Facts and Meaning in Adjudication and Mediation

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication

Constructions of Client Competence and Theories of Practice

An entrenched stereotype about the elderly is that they inevitably experience a progressive decline in cognitive function - what the Article calls the idea of decrement. The vast majority of elderly, however, do not experience declining competence for most or all of their lives. Nevertheless, attorneys interpret much of what elderly clients say and do as the product of cognitive impairment, and sometimes even the elderly themselves construct stories about the world and their circumstances in line with the idea of decrement. These attitudes and social constructions, interacting in complex ways, can distort the ability of attorneys to represent elderly clients effectively. Moreover, these processes also apply to all clients given that all clients are part of a group of groups subject to stereotyping. The representation of the elderly thus holds lessons about conceptualizing and teaching how attorneys can and should represent all clients

Client Counseling, Mediation, and Alternative Narratives of Dispute Resolution

This article examines how litigation and mediation have distinct narrative structures and what these narratives say about counseling clients about mediation. In the narrative of litigation, parties struggle against one another in order to convince a decision maker of the truth of what happened. This struggle is about more than designating liability; it is about enabling the decision-maker to restore social order and vindicate morality. In contrast, the narrative of mediation does not call upon the mediator to designate truth or right and wrong. Rather, the mediator acts to enable parties to overcome and transform conflict through collaboration. In the mediation narrative, parties do not struggle against one another, but all mediation participants - including the mediator herself - struggle collaboratively to overcome and transform conflict. A challenge for counseling clients about mediation is that the litigation narrative reflects deeply-held cultural norms about conflict resolution. This article argues that lawyers must confront and dislodge this underlying narrative of litigation in order to engage clients in a meaningful inquiry about mediation. The article concludes with concrete suggestions - a toolkit - for engaging clients in this kind of narrative reframing of their disputes

Of Grids and Gatekeepers: The Socioeconomics of Mediation

Mediation scholars have long debated which mediator “style” or “model” is correct. The origin of the debate arises from a foundational piece of scholarship by Leonard Riskin. Riskin proposed a “grid” of mediator orientations comprised of what came to be known as “facilitative mediation” and “evaluative mediation.” A more recent addition to the grid—and one that is almost universally recognized as a distinct model—is “transformative mediation.” These three models are so embedded in the literature of mediation that they have been called “the big three.” The influence of Riskin’s work cannot be overstated. It has resonated within the community of mediation scholars and practitioners, suffusing discussions about what constitutes best practices in the field, scholarship, and law school texts. The debate is sometimes framed not as choices, but as what is “true” mediation. There is, however, a radical disconnect between the rhetoric and reality of mediation. This disconnect has to do with the nature of mediation “on the ground” in contrast to the way a “typical mediation” is presented through scholarship, texts, and trainings

Constructions of Client Competence and Theories of Practice

An entrenched stereotype about the elderly is that they inevitably experience a progressive decline in cognitive function - what the Article calls the idea of decrement. The vast majority of elderly, however, do not experience declining competence for most or all of their lives. Nevertheless, attorneys interpret much of what elderly clients say and do as the product of cognitive impairment, and sometimes even the elderly themselves construct stories about the world and their circumstances in line with the idea of decrement. These attitudes and social constructions, interacting in complex ways, can distort the ability of attorneys to represent elderly clients effectively. Moreover, these processes also apply to all clients given that all clients are part of a group of groups subject to stereotyping. The representation of the elderly thus holds lessons about conceptualizing and teaching how attorneys can and should represent all clients

Mapping the World: Facts and Meaning in Adjudication and Mediation

This Article explores what is and what is not in adjudication and mediation, thus illuminating the profound differences between these two processes. The Article does this work in four parts. First, it offers an analysis of cognitive mapmaking and its inevitability in constructing meaning. It then explores how adjudication defines meaning in a particular way. This Article then conducts a comparable analysis of mediation. Finally, it focuses on the bridging function attorneys play between the worlds of mediation and adjudication