Friday, April 06, 2007

Are mediators hindering a civil right to counsel? One scholar says yes

Are mediators hindering a civil right to counsel?It behooves all of us who serve in a profession to pay attention to the way our work is perceived or our profession characterized. In particular we should heed the criticisms, whether just or not, that are raised about our work, so we can learn from or counter them.

Mediators may then wish to know how we are viewed by one scholar in a movement afoot here in the U.S. This movement would expand the right to counsel in criminal cases to civil litigation. It comes in response to a challenge that many in the legal community recognize but do not always agree how best to address: the rising number of pro se litigants in civil and family court cases.

This civil right to counsel is known as "Civil Gideon", after the landmark U.S. Supreme Court decision, Gideon v. Wainwright, which affirmed the right of an indigent person to have the assistance of counsel in a criminal trial. (Retired mediator and attorney David Giacalone introduced me and other readers of the blog shlep to this movement.)

Acceptance for the notion of a civil right to counsel will come about only through cultural change in the halls of justice and among the players there, according to one of its proponents, Russell Engler, a Professor at New England School of Law. In his 2006 article, "Shaping a Context-Based Civil Gideon from the Dynamics of Social Change" (downloadable in PDF from SSRN), Professor Engler describes the actions of those standing in the way of progress thus:

In the courtroom, court personnel, including the judges, will likely encourage the unrepresented litigant to settle the case. That, in turn, may require the litigant to go to the hallway to negotiate with the lawyer, or to resort to some form of court-based mediation. The hallway negotiations are rife with instances of overreaching and unethical behavior by lawyers, unmonitored and unpunished by a legal system that depends on a high settlement rate. Where the litigants resist settlement, strong words from the judges, mediators or lawyers eventually induce litigants to settle. Few civil cases are tried, and most settlements involving the unrepresented poor occur with a minimum of judicial involvement. [Id. at 2.]

Even acknowledging variations in behavior and changes over time, it is difficult to overstate the extent to which judges, court-connected mediators, clerks, court administrators, and the bar's rank and file are hindering the expansion of a right to counsel in transacting their daily business. While many in those ranks are focused on the "problem" of unrepresented litigants, it would be a mistake to assume that those players are natural allies in Civil Gideon initiatives. [Id. at 3.]
(Emphasis mine.)

My first reaction was to feel outraged by this portrayal of our profession as intentional actors in an assault on justice. In my view such sweeping generalizations smear those whose support is most needed and ignore the efforts that many in our profession make to advance justice. (And never mind the insult to the many judges, clerk magistrates, and lawyers I have seen over the years who bend over backward to accommodate pro se litigants and treat them with fairness and respect.)

This is particularly true when so many mediators, particularly those in the nonprofit community mediation programs serving courts where the indigent pro se seem so overrepresented, know all too well the dangers such litigants face. Many mediators care passionately about justice and take such concerns seriously. Here in Massachusetts, our Supreme Judicial Court promulgated rules that prohibit exactly the sort of conduct on the part of mediators that Engler criticizes--rules which mediators helped create incidentally. The Uniform Rules of Dispute Resolution, Rule 9(c)(iii), provides:

Where a party is unrepresented by counsel and where the neutral believes that independent legal counsel and/or independent expert information or advice is needed to reach an informed agreement or to protect the rights of one or more of the parties, the neutral shall so inform the party or parties.
Other sections of Rule 9(c) emphasize the voluntary nature of mediation and prohibit coercion by the mediator:

(v) The neutral shall inform the parties of their right to withdraw from the process at any time and for any reason, except as is provided by law or court rule.

(vi) In mediation, case evaluation, and other processes whose outcome depends upon the agreement of the parties, the neutral shall not coerce the parties in any manner to reach agreement.
Similar safeguards exist in other states as well.

As I said, though, that was my first reaction. My second reaction was different.

I thought to myself, Engler has a point.

You and I both know that not every mediator heeds these ethical rules. I have known of mediators (yes, community mediators among them) who routinely browbeat pro se parties into settling. I have met mediators who care more about settlement rates than trivialities like informed consent or the satisfaction of the parties in the outcome. And in a recent conversation with another mediator about informed consent, I was surprised to hear that mediator express horror at the thought of encouraging a party confused by a legal issue to seek advice from a lawyer. (Encouraging them to go to an accountant for advice on a tax issue would be okay, however.) "It's against the spirit of mediation to involve lawyers!" they argued. This view incidentally is not an uncommon one.

I am not arguing here in favor of Civil Gideon. I don't know yet whether I support it or not. I am concerned that it focuses only on the indigent, when so many of the middle class cannot afford legal services either. I also don't think that being represented by counsel is any guarantee that you'll negotiate more effectively at the mediation table or even fare better in court--I have seen my share of unrepresented people outbargain a supposedly more sophisticated opponent with counsel, as well as people whose best interests were ignored by their lawyers. And the problem may also not be that pro se litigants are pressured to accept settlements they should not. On the contrary, I have seen pro se litigants walk away from fair settlements to defeat in court later, simply because they lacked legal advice to recognize that settlement as a fair one. And I personally would rather see this energy channeled against tort reform, before the case for a civil right to counsel becomes moot. But these are concerns well beyond the scope of this post.

I share Engler's viewpoint with you, my colleagues, to invite us all to reflect on our role at the table. He raises questions we should stop and face.

Is our goal to settle cases? Or is it to advance justice? Perhaps we can achieve both.

But let us be careful--very careful--not to mistake the first for the second.