Mediation is rapidly becoming the “first try” for dispute resolution. Not only are judges ordering mediation at some stage, but attorneys are also recommending mediation as a low-cost alternative to litigation. As the practice of mediation has grown, so too have the number of pro se litigants, trying to find their path to justice in a sometimes very complex judicial system. Many studies on the problems faced by the pro se litigant look to mediation as a viable method of providing access to justice for the pro se party. (Julie R. S. Fogarty and Daniel H. Jeng, Reaching for Justice with Pro Se Litigants: Featuring Original Interviews with Judges, May 10, 2013). This article examines the question of whether a pro e litigant is better served through the process of mediation or through the traditional adversarial court process.
Although mediation is gaining in reputation as a less expensive and successful form of dispute resolution, I submit that it is not necessarily a “better” forum for the pro se litigant. The pro se litigant’s most devastating handicap is a lack of knowledge of the law. Neither a judge nor a mediator can remedy this, because neither is in a position to advise the pro se litigant on the law.
