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Access to Justice - What are your thoughts?

To what extent does mediation provide access to justice for the poor and middle class?

Please provide your thoughts/comments below.

Comments (5)

Paul Nicolai:

Generally speaking, mediation is not targeted to providing poor and middle-class clients with greater access to dispute resolution. To the extent that mediation resolves the case, it lowers the cost of dispute resolution. To the extent that mediation is used without attorneys representing the parties, it also helps to reduce the cost of dispute resolution. How the mediator can be assured to be paid in the circumstances is always an open question. A mediation process which is paid for by public dollars or subsidized by public dollars might be somewhat useful in this context. One could get all the parties to agree to use it. Ultimately, since mediation is a voluntary process, it is only as useful as the parties will allow it to be.

Judge Gerald Harris:

To the extent it is successful mediation would likely reduce the cost of dispute resolution and shorten the time to obtain relief. The saving of time and money, almost by definition, would benefit the poor and middle class (as well as every other potential litigant).

Some readers of the question might assume that the only way to receive justice is through access to the courts. This premise fails to recognize that receiving only money through the court does not achieve justice and may very well leave the disputant very dissatisfied with the outcome. Through mediation, the poor and middle class may receive the same access to justice that more wealthy disputants achieve. Control over the outcome, reduced cost, and more satisfactory result.

1. Small claims courts and landlord-tenant courts frequently use mediation, staffed by law school mediation clinic students overseen by professors, to reach more satisfying results than a harried - and possibly uninterested - court might deliver.
2. Courts can refer cases that are too expensive to try to court-sponsored mediation, staffed by volunteer mediators or modestly paid mediators, resulting in more tailored and nuanced resolutions.
3. Restorative justice is widely used in criminal courts for misdemeanor crimes, providing consensual resolution between miscreant and victim.
4. Mortgage-foreclosure litigation can allow re-financing of mortgages through mediation, allowing homeowners to remain in their homes.

Judith Meyer

I have mediated many cases in small claims court as a volunteer. The results were almost always better for both sides. In particular, where a defendant owed money, the ability to negotiate a revised amount and to work out a payment plan made resolution possible. In more than one such case, when the parties could not agree on an amount, a collaborative judge gave an informal assessment and, without ruling, returned the parties to mediation to agree on details. The "win-lose" alternative, followed by the forms of collection available to collect a judgment would have yielded a much harsher result. There are many other types of cases in which creative solutions led to a better outcome. I am a firm believer in the power of mediation to improve access to justice.

When I was chair of the ADR Committee for the Fairfax County Bar Association in Virginia, we crafted a proposal for a mediator referral service (to run in parallel with the lawyer referral service) to that end. The concept was to provide low cost mediation services to an economic tier (lower middle class and small businesses) who find it difficult to pay for legal services, but who need a venue to resolve disputes. We did not succeed in getting it off the ground, but we reviewed similar services across the country (there are several) and put together a solid proposal. If anyone is interested in a copy, let me know.

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