Mediation can play an important role in improving access to justice during the pandemic and after. As a JAMS mediator and former federal judge for over two decades, I am mindful of the command of Rule 1 of the Federal Rules of Civil Procedure, which is to employ the rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Too often, however, access to a just process and result is stymied by undue expense and other barriers to justice for people who cannot afford the fees and expenses, for racial minorities and people with disabilities.
Mediators can help overcome these barriers by providing a more streamlined process, and being attentive, being creative in using technology and other tools, and being more inclusive. For example, at a time where many mediations are being conducted virtually, some clients lack access to the internet, a computer and a quiet space to participate. JAMS has resolution centers across the country with conference rooms and high-speed internet, which are available for hybrid (or in-person) mediations. Of course, this is dependent on local government regulations, orders and guidance issued by the Centers for Disease Control as to which resolution centers are able to reopen and conduct in-person hearings. Appropriate use of technology can also facilitate the participation of people with disabilities, not only during the current pandemic but afterwards as well, by eliminating the need to travel, which reduces overall costs.
Mediation also provides opportunities for streamlined pro bono participation by mediators and lawyers, who can commit to preparing for and participating in a mediation without having to volunteer for an indefinite and likely substantial period of time as they would in litigation, provided the client understands and agrees. If mediation is conducted virtually, it also avoids the additional expenses of in person participation.
As we know, justice delayed can be justice denied. Mediation can help achieve speedier results, as the courts suffer backlogs due to the restrictions on live proceedings posed by the pandemic, especially trials, as well as the priority given to criminal trials. Mediation can help more promptly resolve civil rights, employment discrimination and disability access disputes and vindicate the rights of those who too often struggle to obtain justice. The pandemic has added to the urgency of many disputes such as crowded working conditions without PPE, loss of jobs and income and evictions including insurance and other disputes affecting the survival of small businesses, including those owned by minorities and women.
Importantly, mediators can appreciate the struggles of people whose needs and voices are too often ignored and enable them to be truly heard. Mediators are ethically obligated be neutral, and must be sensitive to bias of any kind, implicit or otherwise. As a female lawyer and even as a judge, I have been on the receiving end of bias, which has made me more sensitive to the importance of recognizing these issues and working to create a level playing field.
Unfortunately, these issues will remain after the pandemic, and they will require our ongoing vigilance and commitment. There are many lessons learned. The use of technology can expand access to justice, reduce expenses, and deliver faster results.