Representation in mediation: what we know from empirical research.

AuthorWissler, Roselle L.
Position2008 ABA Section of Litigation Access to Justice Symposium

Introduction I. Empirical Findings Regarding Representation in Mediation A. How Many Parties Are Unrepresented in Mediation? B. What Effect Does Representation Have on the Mediation Process? 1. Does Representation Enhance Party Preparation for Mediation? 2. Does Representation Enhance the Fairness of the Mediation Process and Reduce Pressures to Settle? 3. Does Representation Enhance or Limit Party Participation and Expression of Views? a. Opportunities for Parties' Discussion and Improved Understanding b. Parties' Participation in Mediation and Chance to Tell Their Views c. Relationships Among Voice, Participation and Assessments 4. Does Representation Make the Mediation Process More or Less Contentious? C. What Effect Does Representation Have on Mediation Outcomes? 1. Does Representation Facilitate or Impede Settlement? 2. Does Representation Lead to Better or More Fair Settlements? Conclusion INTRODUCTION

Across jurisdictions, one or both parties typically are unrepresented (1) in a minority of filed general civil cases (3% to 48%), in a majority of domestic relations cases (35% to 95%), and in most cases in small claims and housing courts (79% to 99%). (2) Whether unrepresented litigants are able to obtain a fair result in litigation is a major concern, given their lack of information about court forms and processes, lack of knowledge of substantive law and rules of evidence and procedure, and lack of case presentation and negotiation skills. (3) Additional concerns are the potential burdens that large numbers of unrepresented parties might pose for court staff and judges. (4)

Proposals to enhance unrepresented civil litigants' access to meaningful justice can be grouped into three sets. One set recommends that courts do more to facilitate unrepresented litigants' ability to handle their cases themselves, such as by providing instructions, simplified forms, and increased assistance from court personnel or volunteers. (5) Another set of proposals urges courts to provide alternative dispute resolution ("ADR") programs, particularly mediation, for unrepresented litigants. (6) The third set of proposals focuses on increasing the availability of legal representation. (7)

Proposals to expand legal representation generally are silent as to whether they envision providing counsel for ADR proceedings. The ABA proposal does address this issue, but different positions are expressed in different documents. In the report accompanying the ABA resolution, the provision of counsel is limited to fora that occur in the "litigation context" and in which the process is "adversarial." (8) In another document, however, the recommendation is to provide "a full range of services in all forums" including, among others, "representation in negotiation and alternative dispute resolution." (9) Thus, the ABA proposal presumably includes providing counsel for adversarial court-connected ADR proceedings like arbitration, although it is not clear whether it extends to "non-adversarial" court-connected ADR proceedings like mediation or neutral evaluation. (10)

In practice, however, there is no distinct line between "adversarial" and "non-adversarial" processes. Although the mediation process itself may be considered non-adversarial, it often takes place in the middle of adversarial litigation. In many courts, mandatory mediation is a formal step in the court management of litigation; (11) if the parties do not settle in mediation, they are immediately back in the adversarial "litigotiation" process. (12) Just as there is no clear separation between negotiation and litigation, there is no clear separation between mediation and either negotiation or litigation. (13)

The assumption that representation is not needed in mediation appears to underlie proposals that exclude mediation from the processes for which counsel should be provided, as well as proposals that urge courts to provide mediation programs for unrepresented litigants. Existing mediation programs, however, do not necessarily share this assumption. Some court-connected programs routinely exclude cases with unrepresented litigants from mandatory referral to mediation, some refer only certain matters to mediation when one or both parties are unrepresented, and some require lawyers to accompany their clients in mediation. (14) Other programs, however, have mandatory referral to mediation without regard to the parties' representational status, and a few do not allow lawyers to attend mediation or permit the mediator to exclude lawyers. (15) Thus, different mediation programs appear to have reached different conclusions about the relative benefits and costs of representation versus lack of representation in mediation.

The concerns about unrepresented parties in mediation include many of the same concerns that have been raised about unrepresented parties in litigation and negotiation, (16) plus additional concerns specific to the mediation process. Unrepresented parties might not understand how mediation operates, how it fits into the overall litigation process, or its potential advantages or disadvantages when deciding whether or how to use mediation. (17) Unrepresented parties might not be able to articulate or express their views or concerns during mediation. (18) Mediators' neutrality might be compromised if unrepresented parties seek their advice or support: unrepresented parties might feel the process is unfair if mediators do not assist them, and represented parties might feel it is unfair if they do. (19) Unrepresented parties might view the mediator as a court authority and feel pressured to settle, or they might think that being required to mediate means they are required to settle. (20) Unrepresented parties also might not have enough factual or legal information to evaluate the implications of settlement proposals in order to make a fully informed decision and, as a consequence, might accept a settlement that is unfair or does not adequately address their interests. (21)

The effect of the presence of lawyers on the mediation process and outcomes has been debated. (22) Lawyers generally are thought to improve the effectiveness of mediation and their clients' mediation experience by preparing them for mediation and advising them on negotiation skills. (23) Some commentators argue that lawyers are essential to ensure the fairness of the mediation process because they equalize power imbalances and counteract settlement pressures; others maintain that mediators can, and in some settings have a duty to, address these problems. (24) Some commentators argue that lawyers are likely to dominate mediation sessions, thereby limiting the parties' direct participation and transforming their discussions; others maintain that lawyers ensure that parties can communicate their concerns and are not silenced by the mediator or the other side. (25) Some argue that lawyers make mediation more contentious and thereby reduce opportunities for problem-solving and relationship repair; others maintain that lawyers help keep the parties' emotions in check and improve the tone of the session. (26) There is also disagreement about whether lawyers increase or reduce the likelihood of settlement in mediation. (27) While some commentators argue that lawyers ensure against uninformed or unfair agreements, others maintain that mediators can help parties assess settlement proposals and, in some settings, have a duty to prevent unfair settlements. (28)

Given the large proportion of unrepresented litigants and the widespread use of court-connected mediation, it is important to understand what effect representation, or conversely, the lack of representation, has on parties' experiences in mediation as well as the process and its outcomes. (29) To date, few empirical studies have examined these questions. (30) This Article discusses the existing research findings and presents new data on the effect of representation in mediation. (31)

This Article first describes the proportion of unrepresented parties in mediation and the policies and practices regarding representation in different mediation contexts. The core of the Article examines the empirical findings on the effect of representation on several dimensions of the mediation process, including the effect on preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party "voice" and participation in mediation, and the tone of the session. In addition, the Article examines the effect of representation on mediation outcomes, including the likelihood of settlement and the fairness of agreements reached. The studies find few differences consistently associated with representation, suggesting that unrepresented parties might face fewer problems in mediation--and lawyers might create fewer problems--than some claim. The available research is too limited, however, to be able to conclude that lawyers either play an essential role in mediation or are not needed, or that they are particularly helpful or detrimental to the mediation process. Additional findings show that how lawyers represent clients during mediation is related to parties' assessments of mediation and settlement. The Article concludes with a discussion of the findings, the limitations of existing studies, and the additional research that is needed to inform policies and practices regarding representation in mediation.

  1. EMPIRICAL FINDINGS REGARDING REPRESENTATION IN MEDIATION

This section of the Article presents the findings of the handful of studies that have examined the effect of representational status in mediation, primarily in domestic relations and Equal Employment Opportunity ("EEO") cases. These findings are supplemented with new analyses of existing datasets involving court-connected domestic relations mediation and general civil mediation, which will be referred to throughout as "the present study" in domestic relations...

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