Lawyerless dispute resolution: rethinking a paradigm.

AuthorSternlight, Jean R.
Position2008 ABA Section of Litigation Access to Justice Symposium

Introduction I. An Empirical Examination of Legal Representation in ADR A. The Extent of Legal Representation in ADR B. The Impact of Legal Representation in ADR C. Distinguishing Legal and Non-Legal Representation II. Why Might Attorneys be Needed in ADR? A. The Supreme Court's Perspective on Clients' Need for Lawyers 1. Lawyers Are Most Needed for Their Skills and Expertise 2. Need for Attorney is Greatest When Clients Lack Legal Skills and Knowledge 3. Need for Attorney is Greatest When the Proceeding is Formal and Adversarial 4. Fear that Injecting Counsel into Non-adversarial Process will Undermine That Process 5. Others Share the Supreme Court's Views on When Clients Most Need Attorneys B. Lawyers' Contributions Beyond Knowledge and Skills C. How Lawyers Can Help in ADR 1. Knowledge and Strategy re: Processes 2. Gathering and Presenting Factual Information 3. Researching and Presenting Legal Arguments 4. Empowering Clients 5. Drafting Agreements D. Neutrals Can't Adequately Make Up for the Absence of Representation E. Will Adding Lawyers Undercut the Value of Mediation and Arbitration? F. Non-Lawyer Representatives III. So What is to be Done? A. Courts Considering the Need for Counsel Should Rethink Their Focus on Adversarial Settings B. Policymakers Should Focus on the Need for Representation in ADR, and Not Only in Litigation C. Legal Services Organizations Should Rethink How Lawyers Are Used Conclusions INTRODUCTION

Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, (1) most commentators and policymakers have failed to focus on whether participants in mediation, arbitration, or other forms of alternative dispute resolution ("ADR") (2) need legal assistance. (3) Likely, the failure to focus on the possible need for representation in proceedings is based on an often unstated premise that because ADR is non-adversarial, or at least less adversarial than litigation, the need for representation in ADR is necessarily, or at least typically, less than the need for representation in litigation. (4) Since we have not yet come close to providing all litigants with attorneys, some may say we should not waste our time or energy thinking about the possible unmet need for attorneys in ADR processes. Perhaps the failure to focus on the possible need for representation in ADR is also based on a misimpression that most mediations and arbitrations are informal affairs in which attorneys could do little good and might even disrupt the process. (5)

This Article suggests that our failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. Although legal representation is no doubt more important in some contexts than others, it is wrong to make the binary assumption that legal representation is always more important in litigation than in ADR processes. Whereas some may assume that ADR processes are uniformly informal and supportive, it turns out that arbitration, and even mediation, can often be quite formal and adversarial. In arbitration, witnesses are often called, expert testimony presented, and legal arguments made. As for mediation, it too can often involve legal arguments, documents, and presentations by lawyers, clients, and experts. Indeed, as compared to litigation, mediation may give attorneys more opportunity to intimidate their opponent with visual evidence and arguments that the rules of evidence might not permit. (6) If lawyerless ADR is problematic, it is a pervasive issue. Mediation and arbitration have become increasingly prevalent as part of our justice system. (7) Many jurisdictions are now not only offering mediation and arbitration as options, but also taking the further step of mandating that parties proceed to ADR prior to, or sometimes in lieu of, resolving their claims in court. (8) In addition, many contracts also require that disputes be resolved privately through mediation or arbitration, rather than through litigation. (9) Thus, ADR may be the only form of dispute resolution many disputants get. As for representation, some jurisdictions proscribe the participation of attorneys in court-connected ADR processes. (10) Other jurisdictions or ADR providers may permit or even encourage participants to bring attorneys, (11) but the reality is that participants often do not or cannot retain counsel. (12)

Part I will discuss the empirical side of these issues. How often or under what circumstances do participants in mediation and arbitration have attorneys? What appears to be the significance of whether parties are represented in ADR processes? Specifically, is such representation helpful to the party? Does it change the nature of the ADR process itself?. If representation is important, need the representative be an attorney? Unfortunately, as this entire area has been under-studied, we will not find clear answers to all of these questions. But, we will learn that attorneys do seem to help in ADR, at least sometimes, and that while attorneys or sometimes non-lawyer representatives do participate in ADR, many parties in ADR are also unrepresented.

Part II will examine why lawyers might be important in ADR, drawing on the literature and case law discussing the significance of lawyers in other contexts. This analysis will cause us to rethink our assumptions regarding whether and when attorneys might be helpful. Case law and policy discussions have stated (with little explanation) that it is much more important to have legal representation in adversarial than non-adversarial settings. Such statements seem to be based on another unchallenged assumption-that the primary value added by lawyers is their knowledge and skill with respect to such matters as fact gathering, legal analysis, procedural rules, and presentation of evidence. This assumption has led people to conclude that lawyers are most needed in complex cases, adversarial for a, and where the disputants are not particularly well-educated or articulate. However, as Part II.B will discuss, recent social science research suggests that lawyers may also play other roles, such as balancing power inequalities or providing emotional support. Thus, the need for lawyers may be even greater in simpler kinds of cases than it is in more complex matters. Based on lawyers' contributions in terms of knowledge and skills as well as power balancing and emotional support, Part II.C concludes that legal representation may often be critically important in ADR processes. Part II.D rejects the idea that neutral arbitration and mediation can entirely take the place of attorney advocates. While some may argue that the presence of attorneys may at times undercut the value of mediation or arbitration, Part II.E concludes that this idea is often overstated. Finally, Part II.F considers whether non-lawyer representatives ("NLRs") are as effective as attorneys in serving clients' interests in ADR. While recognizing that this is at times true, this Article asserts that NLRs are no more inherently appropriate in ADR proceedings than they are in litigation. Thus, while we ought to reconsider the extent to which prohibitions on non-attorney representation may impinge on disputants' access to justice; it is a mistake to assume that non-attorney representation is more appropriate in ADR than in litigation.

Finally, Part III will consider the practical implications of the conclusion that disputants in ADR often need legal representation. Because many disputes will be finally resolved in ADR and because legal representation can be equally or even more important in ADR than in litigation, we need to focus simultaneously on improving representation in both ADR and litigation. Part III suggests that these insights need to be considered by courts regulating ADR processes and examining right-to-counsel arguments in those processes, by policymakers examining how access to counsel can be improved, and by attorneys and legal service organizations determining how to allocate their scarce resources.

  1. AN EMPIRICAL EXAMINATION OF LEGAL REPRESENTATION IN ADR

    As Professor Wissler emphasizes in her valuable article for this symposium, very little empirical work has been done examining attorneys' role and impact in mediation. (13) We similarly know very little about the extent to which participants in arbitration are represented by attorneys, nor the degree to which legal representation in arbitration is significant. While multiple books and articles now provide guidance to attorneys regarding how to participate in mediation (14) or arbitration, (15) most of these works do not ex amine the question of whether attorney representation is rare or common. Still, it is worth summarizing the little bit that we think we know.

    1. The Extent of Legal Representation in ADR

      In considering the question of how frequently ADR participants are represented by attorneys, it is critically important to remember that ADR processes vary tremendously. To this author, at least, it seems obvious that the likelihood of representation in ADR will fluctuate according to factors such as which ADR process is being used, (16) the nature of the matter in dispute, (17) the wealth and character of the disputants, (18) and the amount of money or other relief at stake in the dispute. (19)

      Is the phenomenon of pro se disputants less present in ADR than in litigation? Is there any reason to believe that it is easier for disputants to obtain representation to handle a given dispute in ADR than in litigation? Theoretically, this could be true. If ADR processes were cheaper and quicker than litigation, and if plaintiffs could recover as much through ADR as they could through taking that same dispute to litigation, then plaintiffs' lawyers would be more eager to handle a particular dispute on contingency in the ADR process than in litigation. On the...

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