The courts have been the center of our dispute resolution system since our Constitution was adopted. We expect, as a fundamental right, the ability to go to court to address our disputes and seek justice. Yet, millions of Americans are unable to access or navigate the judicial system, mostly due to financial reasons. This article explores how mediation can play a part in providing access to justice for those with limited means. Part One of the article takes a brief look at the use of mediation in three states: Colorado, Florida and Kentucky, and examines the mediation legislation and programs currently in place in those states. Part Two addresses key issues in mediating disputes involving low and moderate income earners, based on a series of interviews with judges, court administrators, attorneys, clients and mediators in those states. Part Three outlines a proposal for court-sponsored mediation programs as an alternative form of dispute resolution meant to complement our traditional adversarial system and provide access to justice for the moderate income litigant.
Mediation is increasingly recognized as an effective form of dispute resolution by the judiciary, attorneys, and participants. Given our longstanding history of dispute resolution through the courts, the judiciary (through appropriate funding) should take the responsibility for promoting mediation through court-sponsored programs. Courts should continue to develop appropriate mediator qualification requirements, as well as standards and guidelines to ensure quality of the mediation process. Limited scope representation practices, allowing counsel to represent a client only for the purposes of mediation, should be encouraged by the legal community. Judges are most typically in the best position to determine which cases are best suited for mediation, and are in the best position to facilitate the use of mediation. They should be encouraged to do so as a matter of public policy. In addition, every effort should be made to continue to educate the public on the use of mediation, including the use of court websites, promotional brochures, and in the future, access to online dispute resolution services. Not all disputes need to be resolved in a formal adversarial manner. With appropriate funding, education and time, mediation can be an effective tool for providing a problem-solving approach to dispute resolution and more access to services for those with limited means.
