Last month RSI’s Heather Scheiwe Kulp blogged about the need for courts to find creative solutions to the problems of increasing caseloads, increasing numbers of self-represented litigants and dwindling resources to handle it all. As if in answer, an article showed up in RSI inboxes last week that addressed these very issues. David Levin, the director of Court Alternatives in the Second Judicial District of New Mexico, wrote an essay suggesting a new model that combines court mediation programs and unbundled legal services.
Levin singles out mediation as the answer to many of the courts’ caseload woes. He points to a study of mediation programs in California courts, Evaluation of Early Mediation Programs, to illustrate the potential benefits of court mediation programs. The study found that using mediation resulted in lower costs per case, fewer required resources per case, and reduced time between case filing and resolution. Many other studies have found similar positive effects of mediation.
However, Levin acknowledges that self-represented litigants still need help to effectively participate in mediation or other ADR process. He suggests that attorneys provide unbundled legal services to self-represented litigants before, during and after the mediation process. Prior to participating in ADR, the litigant would meet with an attorney to discuss the legal issues involved in his/her case, the information needed to make decisions, realistic settlement expectations, and the preparation necessary for the ADR process. During the ADR process, the litigant and attorney would meet again to revisit these topics, and after the ADR process to discuss how to make a settlement legally effective and how to draft final documents.
Levin’s model represents the kind of creative thinking that is needed to increase access to justice through the court system. RSI suggested a similar model in its Accessing Justice through Mediation report. In RSI’s “Stepping Stones Model,” poor and low-income litigants would have the opportunity to receive legal services at different points in the mediation process. For example, they would receive legal advice or information prior to mediation, or meet with a pro bono attorney after mediation to draft agreements.
Unbundling legal services is a controversial proposal, and implementing models like these would require substantial buy-in from courts and attorneys. On the other hand, providing unbundled legal services might be an effective way of preparing self-represented litigants to participate fully in mediation. Self-determination is a central theme of mediation, and it’s hard to argue that it is achieved when parties are uninformed about the legal system or their rights. For that reason, these models are worth considering.