Lawyerless Dispute Resolution: Rethinking a Paradigm

Introduction I. An Empirical Examination of Legal Representation in ADR A. The Extent of Legal Representation in ADR B. The Impact of Legal Representation in ADR C. Distinguishing Legal and Non-Legal Representation II. Why Might Attorneys be Needed in ADR? A. The Supreme Court's Perspective on Clients' Need for Lawyers 1. Lawyers Are Most Needed for Their Skills and Expertise 2. Need for Attorney is Greatest When Clients Lack Legal Skills and Knowledge 3. Need for Attorney is Greatest When the Proceeding is Formal and Adversarial 4. Fear that Injecting Counsel into Non-adversarial Process will Undermine That Process 5. Others Share the Supreme Court's Views on When Clients Most Need Attorneys B. Lawyers' Contributions Beyond Knowledge and Skills C. How Lawyers Can Help in ADR 1. Knowledge and Strategy re: Processes 2. Gathering and Presenting Factual Information 3. Researching and Presenting Legal Arguments 4. Empowering Clients 5. Drafting Agreements D. Neutrals Can't Adequately Make Up for the Absence of Representation E. Will Adding Lawyers Undercut the Value of Mediation and Arbitration? F. Non-Lawyer Representatives III. So What is to be Done? A. Courts Considering the Need for Counsel Should Rethink Their Focus on Adversarial Settings B. Policymakers Should Focus on the Need for Representation in ADR, and Not Only in Litigation C. Legal Services Organizations Should Rethink How Lawyers Are Used Conclusions INTRODUCTION Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, (1) most commentators and policymakers have failed to focus on whether participants in mediation, arbitration, or other forms of alternative dispute resolution ("ADR") (2) need legal assistance. (3) Likely, the failure to focus on the possible need for representation in proceedings is based on an often unstated premise that because ADR is non-adversarial, or at least less adversarial than litigation, the need for representation in ADR is necessarily, or at least typically, less than the need for representation in litigation. (4) Since we have not yet come close to providing all litigants with attorneys, some may say we should not waste our time or energy thinking about the possible unmet need for attorneys in ADR processes. Perhaps the failure to focus on the possible need for representation in ADR is also based on a misimpression that most mediations and arbitrations are informal affairs in which attorneys could do little good and might even disrupt the process. (5) This Article suggests that our failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. Although legal representation is no doubt more important in some contexts than others, it is wrong to make the binary assumption that legal representation is always more important in litigation than in ADR processes. Whereas some may assume that ADR processes are uniformly informal and supportive, it turns out that arbitration, and even mediation, can often be quite formal and adversarial. In arbitration, witnesses are often called, expert testimony presented, and legal arguments made. As for mediation, it too can often involve legal arguments, documents, and presentations by lawyers, clients, and experts. Indeed, as compared to litigation, mediation may give attorneys more opportunity to intimidate their opponent with visual evidence and arguments that the rules of evidence might not permit. (6) If lawyerless ADR is problematic, it is a pervasive issue. …