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

Court Mediation and the Search for Justice Through Law

The trend toward court mediation is remarkable because our civil justice system has traditionally promised justice through law. The promise of mediation is different: Justice is derived, not through the operation of law, but through autonomy and self-determination. When mediation occurs in court, significant policy questions arise: What happens to law? To justice? Do they collapse in the experience of self-determination? If so, what then happens to the promise of justice through law, particularly where one or both of the parties are not represented by lawyers? These are the questions I address in this article. Part I of this Article traces the development of court mediation over the past twenty years. Part II begins to explore the normative question of what role law should play in court mediation and presents two case studies from a court mediation project. These studies provide the framework for discussion in the remainder of the article. Part III considers the predominant positions concerning the relationship between law and mediation; particularly, criticism that law is excluded from the mediation process. Part III also discusses the merits of including law in the mediation process. Part IV calls for greater understanding of the meaning of justice in court mediation

Self-Determination in International Mediation: Some Preliminary Reflections

Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the selves endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of self-determination allows parties to participate in decision making and voluntarily decide the outcome of their disputes. This understanding of self-determination is rooted in the philosophical principle of personal autonomy and is expressed through the legal doctrine of informed consent. The simple version of the normative story states that those who are affected by a dispute should voluntarily consent to the outcome of that dispute. In short, party self-determination in mediation gives ownership of the conflict to the disputants

Does ADR’s “Access to Justice” Come at the Expense of Meaningful Consent?

Over the last forty years, ADR processes, in particular mediation and arbitration, have been advanced as vehicles to secure access to justice for individual litigants and to improve efficiency in overburdened court systems. These processes have functioned as alternatives to the court adjudication of disputes, complementing the judicial system, and operating in what has been famously described as “the shadow of the law. The primary benefits promised by ADR were party autonomy and empowerment. ADR processes would allow parties to “fit the forum to the fuss.” These processes would give parties the opportunity to create their own mosaic of justice, personalized and individualized justice, not unlike the fairness remedies that equity courts had historically provided I argue that claims about ADR’s ability to provide access to justice should be more modest. As it turns out, ADR falls short on its original promises, giving short shrift to the value of consent. Over the last few decades, party autonomy has diminished in both mediation and arbitration, and it is not clear that ADR has resulted in greater efficiencies for the courts. In this Article, I question whether ADR processes have provided the kind of access to justice envisioned by proponents, or whether they have been stumbling blocks to achieving that goal. My skepticism is prompted by the withering away of consent in arbitration and mediation, two of the most commonly used ADR processes

Problem-Solving Negotiation: Northern Ireland\u27s Experience with the Women\u27s Coalition Symposium

This paper is part of a Symposium that considered the relevance of domestic conflict resolution theories in broader cultural contexts. The Northern Ireland Women\u27s Coalition (Women\u27s Coalition) participated in the negotiations leading up to the 1998 Good Friday/Belfast Agreement. Members of the Woman\u27s Coalition responded to thirty years of sectarian violence with a negotiation process based on accommodation, inclusion, and relationship building, concepts that resonate with American-style problem-solving negotiation. Using the Women\u27s Coalition as a case study, this Article suggests that there are procedural aspects of problem-solving negotiation theory that may work across domains, specifically in multi-party, intractable conflict situations, where not all players share the same end game. Topics discussed include: (i) background of the conflict in Northern Ireland, the Troubles , (ii) problem-solving negotiation theory, (iii) strategic approaches of the Women\u27s Coalition during the multi-party negotiations leading to the Good Friday/Belfast Agreement, (iv) perspectives on comparative dispute resolution, and (v) relevance of inclusion, trust and relationship building