Burdening access to justice: The cost of divorce mediation on the cheap

St. John's Law Review, Spring 1999 by King, Carol J

Various mandatory settlement programs exhibit inconsistent goals. On the one hand, court-annexed alternative dispute resolution has been promoted as a way of benefiting litigants by reducing costs and delays, thereby enhancing access to the courts. On the other hand, shifting fees and costs to a party unwilling to accept a pretrial settlement recommendation coercively decreases access to the courts.

Diverting cases from the traditional advocacy system raises a serious dilemma. Public funds pay for the services of judges to resolve disputes. Mediators also resolve disputes, however at the parties' expense. When parties are forced to mediate, and to pay the mediator as well, the court's interest in inexpensive docket control trammels the litigant's interest in free choice of an affordable dispute resolution process.

Our justice system has long valued the ideal of "justice for all" by compensating judges with tax dollars and establishing reasonable court filing fees to enable individuals from every existing economic level to bring their grievances to court. Inserting mandatory dispute resolution into standard pretrial procedures, without providing free or low-cost neutrals, can add a substantial expense to the cost of pursuing a claim or protecting one's rights. Although some parties can easily afford the additional expense, others may not be so lucky. When trial disincentives are linked to mandatory settlement, the problem worsens. This issue arises at a time of concern about poor members of our society being frozen out of entry to the courts.47 Funding for legal services to the poor has been slashed.48 Surviving programs have been subjected to restrictions on the types of cases they can handle and clients they can serve.49

Judicial referrals of cases to private mediators at the litigant's expense raise another issue. For any adjudicatory system to be effective, it must be perceived by the public as fair and impartial. When parties to litigation are referred by the court to private service providers, some may question the motivations of both parties to the transaction. As one of the respondents to our Ohio survey of divorce mediation charged, "Mediation is a money-making scheme the courts use. Mediators give money to the courts so that they can get referrals."50

A different, related issue concerns the cultural values underlying society's long-standing commitment to the adversarial concept of justice. The fundamental notion behind the litigation system, that the presentation of both sides of a case by dedicated advocates to a neutral decision-maker is the best way of arriving at the proper result in all cases, is subject to question.

Proponents of mediation explain that parties to a dispute often have valid, but differing, points of view.51 Guided discussions, during which all disputants have the opportunity to express their own perspectives and to hear the perspectives of others, can lead to increased understanding and foster reasonable, informed compromises in settlement of the dispute. No one method of dispute resolution is perfect for all types of cases, and few mediators would advocate dismantling the adversary system. As our society becomes more diverse and complex, the wisdom of compromise and accommodation in appropriate cases becomes ever more apparent.52