FairWay Resolution Anne Scragg Scholarship winning essay - Mediation and the Civil Justice Gap - Matthew Gale
An article written by Matthew Gale, Winner of the FairWay Resolution Anne Scragg Scholarship
By now everyone in the judicial branch in every state knows that we are experiencing an explosion of unrepresented persons appearing in the courts of general jurisdiction of this country. We know that they impose major burdens on judges, court staff, and on court processes.
There is a belief that courts throughout the common law world are being flooded by unrepresented litigants. The New Zealand civil justice system is not immune from this seemingly universal affliction. In her 2014 Ethel Benjamin Address, the then Chief High Court Judge, Justice Helen Winkelmann, identified the increasing number of unrepresented litigants before the courts as a symptom of the growth in the unmet need for access to justice; the growth in New Zealand’s civil “justice gap”. Her Honour’s evidence was that 25 per cent of active civil files in the Court of Appeal and 40 per cent of judicial review cases in the Auckland High Court involved unrepresented litigants. However, those anecdotal figures from the Higher Courts represent only the tip of the unrepresented iceberg – even the extrapolation of these trends to New Zealand’s lower courts and tribunals is likely to underestimate the size of the problem. Furthermore, it must be remembered that court filing statistics does not account for those who are driven away from the civil justice system altogether.
While a number of factors influence the existence of unrepresented litigants generally, the common perception is that the recent surge in the number of unrepresented litigants appearing in Court can be attributed to the ever increasing price of litigation. On this view, litigants are being driven to forgo the services of counsel because of both the fees of lawyers themselves and the fees involved in initiating and pursuing a claim in court.
Regardless of the reasons for appearing without counsel, unrepresented (or “lay”) litigants pose a number of issues for the proper administration of justice. The most commonly identified problems associated with unrepresented litigants are the impacts they have on judicial efficiency and neutrality, but there is also the, often unarticulated, effect the lack of representation has on the litigant’s access to justice and the interests they are seeking to protect. As Justice Winkelmann observed, the right to self-representation offers theoretical access to the courts for litigants that may in reality be illusory.
The New Zealand legal system accommodates lay-litigants in a variety of ways. The creation of the Disputes Tribunal, which deals with small claims and expressly prohibits lawyers from appearing, is one such method. In the traditional justice system, lay-litigants are accommodated by a combination of an informal relaxing of rules, timetables and deadlines and by trying to incrementally educate the litigant about the operation of the system. This ‘education’ can be both informal (e.g. on an ad hoc basis through interactions with some other participant in the process (judge/opposing counsel)) or more formally (through organisations such as Community Law Centres and the Citizen’s Advice Bureau).
Compulsory alternative dispute resolution processes, like the process now being employed in New Zealand’s Family Courts, have previously been suggested as a starting point for finding a more lasting solution to the surging tide of unrepresented litigants. The Family Court now requires, in most child custody cases, that the parties show they have attempted the Court-funded and run Family Dispute Resolution mediation service first. Similar ‘mandatory’ mediations aimed specifically at lay-litigants have been trialled in the United States and provide a more aggressive means for eliminating the demands which lay-litigants place on registries and the judiciary. The theory being, that if successful, the need for pleadings would be obviated as would the additional time demands placed on registries and the potential issues created for judicial efficiency and neutrality.
Although the simple diversion of lay-litigants to mandatory mediation would, in theory at least, reduce the immediate caseload of the courts, there are a number of significant objections to such a course. In addition to the traditional objections to the concept of mandatory mediation,  the greatest concern in mediations involving unrepresented parties is that such parties are likely to be most susceptible to pressures to settle. A related concern is that there is likely to be a significant information deficit for a lay-litigant: the unrepresented party is less likely to be able to collect and analyse information needed to predict the outcome of litigation and be disadvantaged in the bargaining process. It is therefore not clear whether the substantive fairness concerns of the unrepresented litigant would be alleviated at all. Some jurisdictions see these concerns as so substantial that they deliberately exclude lay-litigants from mandatory mediation programmes.
Additionally, any diversion of unrepresented parties into mediation programmes is likely to mean that the efficiency and neutrality challenges faced by the courts are simply shifted from judge to mediator. Mediators, like judges, are required to be neutral. Complicating a mediator’s position, however, is the internal debate within the vocation about the extent to which a mediator should stray from facilitating to evaluating and whether substantive fairness of outcome is even a concern of the mediator. Therefore, in some ways the challenges presented by lay-litigants are less immediate for a judge as, unlike a mediator, it is within the purview of the judge’s traditional role to soften the impact of differences in the representation of the parties.
It is important in considering these alternatives not to conflate the need to reduce the burden on the civil courts with the primary goal of the system – providing justice (both substantive and procedural). The former is simply a means to the latter end. In order for mediation to play any role in reducing the burden of unrepresented parties on the civil justice system, there must therefore be significant changes to the concept and process to accommodate the needs and deficiencies of the unrepresented. Engler argues that you cannot maintain the traditional view of mediation while urging widespread use of mediation in settings involving unrepresented parties – the mediator’s role must be re-defined with that ultimate goal of providing justice in mind.
The scope of the changes to the mediation process necessary to properly accommodate and provide for unrepresented parties is not clear. Central to that question is the extent to which the mediator’s role must be redefined. At one end of the scale, low level change would merely involve ensuring the provision of sufficient information to the unrepresented party about the process, including that the mediator has no authority to impose a solution, and that they will not be treated adversely by the court should they fail to settle – an approach which would leave the mediation process itself largely intact. At the other end of the scale, making substantive fairness of outcome a fundamental concern of the mediator and mandating an evaluative approach appear to be more radical departures from the traditional view of mediation. Despite that appearance, however, there are means of making substantive fairness a consideration without drastic changes to the mediation process. In some jurisdictions mediators retain residual authority (either real or de facto) to terminate mediations where they believe a litigant lacks sufficient knowledge to make an informed decision about settlement.
Other adapted mediation processes also offer ostensibly fundamental changes to the traditional view of mediation. The presence of a second independent neutral participant (other than the mediator) with in depth knowledge of the law and subject matter involved provides the possibility of negating informational deficiencies which a lay-litigant may suffer from. This adapted form of advisory mediation would allow the mediator more freedom in choosing their approach to the mediation process, while preserving their neutrality. The extent to which that possible change would actually affect the mediation process would depend on the threshold and guidelines for the intervention of the independent information provider. While their liberal involvement throughout the process would be a radical departure from a traditional mediation, another conception of their involvement is as a residual safety-net of the sort described above – intervening only where they think one of the parties’ insufficient knowledge is being taken advantage of.
Alternative dispute resolution, and particularly mediation, offers prima facie attractive avenues for mitigating the impact that unrepresented parties have on the courts. However, caution must be taken that the problems confronting the traditional justice system in dealing with such litigants are not simply transplanted to a new setting. The ultimate goal of the justice system must remain achieving justice and ensuring equality of access to justice. Consequently, if mediation is to be designated as a tool central relieving the pressure on the civil courts, the traditional mediation process must be re-imagined to ensure that the needs of the represented are provided for. As the Chief Justice of Ontario noted in a recent speech:
Mediation is not a panacea for the ills of the civil justice system, but it is a step along the path. Implemented wisely, evaluated realistically, and measured against pragmatic expectations, it holds the promise of immense dividends for our citizens and for our civil justice system.
 John Greacen “Self Represented Litigants and Court and Legal Services Responses to Their Needs – What We Know” Paper prepared for the Center for Families, Children & the Courts California Administrative Office of the Courts
 Russell Engler “Ethics in Transition: Unrepresented Litigants and the Changing Judicial Role” (2008) 22 Notre Dame JL Ethics & Pub Pol'y 367.
 Access to justice challenges also exist in New Zealand’s criminal justice system. This essay, however, focuses on the challenges faced by those attempting to access civil justice.
 The Honourable Justice Winkelmann “Access to Justice – Who Needs Lawyers?” (Ethel Benjamin Address, 67 November 2014). Her Honour also observed that over half of the civil applications for leave to appeal to the Supreme Court in 2014 involved unrepresented litigants, but explicitly noted the difficulty in tracking the relevant data and trends.
 Chronic issues of delay, fragmentation and the adversarial nature of litigation (in addition to those mentioned in footnote 6 below) are among those that drive citizens away from using the justice system at all.
 It is arguable that a baseline level of unrepresented parties will, for various reasons, always exist no matter the price of legal services. The Wisconsin Access to Justice Commission has previously observed that “The increasing number of self-represented litigants is driven by stagnant family incomes, the rising cost of lawyers, increased complexity in the legal system, cutbacks in legal aid funding, the availability of legal information online and a growing do-it-yourself culture” (Wisconsin Access to Justice Commission “Updating The Judicial Code For The Age Of Self-Represented Litigants” (29 July 2013) at <http://wisatj.org/> accessed 18 September 2015.
 Lay-litigants are commonly referred to as pro se litigants in American legal parlance; pro se being Latin for “in one’s own behalf”.
 T Buxton “Foreign Solutions to the U.S. Pro Se Phenomenon” (2002) 34 Case W Res J Int’l L 103 at 114
 Both of which offer clinics designed to assist those with legal issues (who may be or become lay-litigants) in the framing of their legal issues and the formulations of their claims or defences. The short-lived Law Spot initiative – an online forum for the public to seek legal information from volunteer practitioners – is another example of providing lay people with ready access to legal information which may better inform litigation decisions.
 Buxton at 146.
 Voluntariness is a fundamental and often defining aspect of mediation. Proponents of ‘mandatory’ mediations explain this apparent conflict by maintaining that mandatory participation does not compromise the voluntariness of any settlement reached.
 Fowler et al Planning Mediation Programs – A Deskbook for Common Pleas Judges (Ohio State University College of Law, 2000) at 7-49.
 O M Fiss “Against Settlement” (1984) 93 Yale L.J 1073 at 1076.
 Indeed, Buxton suggests at 146 that an advantage of mediating with pro se litigants (rather than litigating) might be the ability to drive a harder and faster bargain.
 Fowler et al at 7.49.
 The Honourable Justice Winkelmann “ADR and the Civil Justice System” (Address to the AMINZ Conference 2011 – Taking Charge of the Future, 6 August 2011). Justice Winkelmann cited the judicial oath to “do right to all manner of people” as justifying a judicial approach which lessened the impact of distributional inequalities.
 Russell Engler “And Justice for All—Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks” (1999) 67 Fordham LR 1987.
 See for example Fowler et al at 7-50 and the reference made to the practices of mediators in Stark County, Ohio.
 For example, the mediator would retain freedom of choice between evaluative, facilitative and transformative methods of mediation (or a combination thereof).
 The Honourable Warren K. Winkler Chief Justice of Ontario “Access to Justice, Mediation: Panacea or Pariah?” (Opening of the Courts of Ontario for 2015, 24 September 2015).
Matthew graduated BA/LLB(Hons) (1st Class) from the University of Otago in 2011. He is currently a Master of Laws candidate at the University of Pennsylvania Law School in Philadelphia, where he is a Dean's Scholar.
Prior to commencing his studies in Philadelphia in July, Matthew was a senior solicitor at Wilson Harle, an Auckland based commercial litigation and dispute resolution firm, and formerly a Judges’ Clerk at the Auckland High Court.
Matthew's focus at the University of Pennsylvania is on litigation and dispute resolution, building on his professional experience. He is currently enrolled in the Law School's Mediation Clinic which involves mediating a range of disputes in Pennsylvanian and Federal courts. Matthew hopes his experience in the United States will enable him to better contribute to the conversation in New Zealand on the intersection of access to civil justice, litigation and alternative dispute resolution issues.