Coming off a wonderful conference at Pepperdine, I wanted to put down in writing some of the stimulating conversation that we had over the course of the two days there. I imagine that there will be other posts to come! One of our sessions was about Access to Justice and how (or if) ADR could or has contributed to this. It’s a rich topic–as many speakers noted, much of ADR’s history comes from the civil rights and community justice movements in the 60’s and 70’s.
Our panel was tasked with addressing some of those questions. I will leave this to my other panelists to put their own words into print–Cynthia Alkon helpfully started by defining Access to Justice in ADR; Jean Sternlight talked about where ADR has been problematic ; and Jen Reynolds led the discussion about where ADR might be able to better support it in the future. It was a really thoughtful and thought-provoking conversation. For my own piece of the session, as I was thinking about how ADR has supported Access to Justice in the past, I used a particular framework that I want to suggest can help us analyze this in the future. We could think about Access to Justice in three ways:
- Access to Process–can parties easily access a dispute resolution forum in a cost conscious manner
- Access to Lawyers Plus–can parties access helping professionals–lawyers, but also financial counselors or special education advocates, etc–in order to support informed decision-making
- Access to Better/Fairer Outcomes–are ADR processes providing parties with the opportunity to use their voice and influence the outcome of their disputes.
I think we have lots of successes in each of these from small claims mediation clinics to embedded employment mediation services (i.e. the Postal Service) and beyond. And, as we noted, each of these examples also have a problematic side where we could or should be doing better….
This is a very important topic to be thought about. ADR does help support lower income communities in the ability to receive justice and conclusions to their disputes.
On top of that, if two disputants can come to a conclusion in one day of mediation versus months or years in court this can benefit lower income people. This way they would only have to miss one day of work to attend mediation rather than having to miss multiple days in order to reach a conclusion in their legal issue.
There could still be a problem with accessing lawyers to support informed decision making whether you are using a form of ADR or going to court. Lawyers still have fees and expenses, and those don’t just disappear simply because mediation was chosen over litigation. However, if this is a quicker process the attorneys fees will still be lower which would be advantageous.
ADR processes providing parties with the opportunity to use their voice and influence the outcome of their disputes.
The ADR process provides parties with the opportunity to use their voice and influence the outcome of disputes. Using the process allows for people to expand the number of possibilities to create unique solutions that fir their needs rather than limiting the outcome to what could be ordered by a court. These are solutions that we see take place in terms of education, addressing police violence, and so on. They help to build relationships between communities that feel marginalized from the greater commonwealth.
The access to justice problem has been on the forefront of my mind for the past few weeks through my review of an a forthcoming Article to be published in the Fall Issue of Volume 103 of the Marquette Law Review. Access to justice remains a problem in the legal system, but ADR certainly has provided improvements in reducing this problem. I view this problem from the lense of pro-bono legal services as I am a volunteer with the Marquette Volunteer Legal Clinic. ADR provides benefits to underserved legal communities in a couple of major ways.
First, alternative dispute resolution procedures often place unrepresented laypeople more at ease than they would be as a pro se litigant. While courts may be less unfamiliar due to the rise of court-based pop culture, it is still foreign territory to many. In addition, some attorneys are uncomfortable with ghostwriting, the practice of drafting a document on behalf of an unrepresented party without formally appearing before court. With the availability of ADR processes, a pro-bono legal advice can be provided without the inherent risk of ghost writing. ADR processes are also certainly easier to understand than the judicial system, as the process is usually governed by less rules. Overall, it is undoubtable that continuing advancements in alternative dispute resolution chips away at the access to justice problem.
The ADR process provides a new and potentially easier way for marginalized groups to receive access to a greater level of fairness and satisfaction. Among the factors of the analysis provided above, the third option of access to better/fairer outcomes is essential.
With an emphasis on self-determination and participation, parties are able to come to the table with much less than what they would need to bring a claim through litigation. Having parties work together to come up with creative solutions and allowing a free-flow of conversation will generate greater satisfaction with the outcome while also preserving a level of autonomy. In my opinion, access to ADR options should be marketed on a wider scale to ensure that any person is able to utilize a larger array of professional guidance without the cost of litigation.
As mentioned above, our court systems are clogged. Providing ADR on a wider scale will help take the pressure off of judges and court personnel, while also administering a level of justice that is more efficient and equal.
While it is widely discussed how minority groups have, historically, had less access to justice through the judicial process I have not heard as much regarding access to ADR. While I think it is important to equalize access to ADR, I think the more difficult component will be making people aware that forms of ADR are even available to them. I would be interested to see a study as to whether different demographics of individuals that have gone to court for an issue knew that ADR could have been used instead and, if not, whether they would have chosen to use it instead.
Our judicial system is clogged, but making ADR more available and making forms of ADR more well known could equalize access to justice and make getting a resolution for parties quicker.
I appreciate your comments about ADR and A2J. I am so sorry I was not able to attend the event at Pepperdine but am curious about the discussion with your panelists.
Almost every Futures Report on the Future of the Legal Profession references ADR, and specifically ODR as the real way to provide affordable, accessible, and quick access to a process that individual people can use to resolve problems without the intervention of the court system. These futures reports point to the failure of the system to adapt to the changing needs of the populations they serve and their need to update their system. I believe ADR, and ODR, because they are systems design processes can fill in a gap that exists today.
I am interested in what your panel discussed!