In my last Slaw post I explored how lawyers can assist their clients through effective mediation advocacy and by providing mediation coaching. In this post, I would like to explore another combination of legal services and mediation that has enormous potential to create affordable and accessible dispute resolution opportunities for clients.
Unbundling (or limited scope representation as it is commonly referred to in the U.S.) is becoming more recognized and highlighted as a key tool to increase access to justice, particularly for those who do not qualify for legal aid services but cannot afford full representation (the CBA, NAC and Macfarlane reports for example).
So just how can unbundling be combined effectively with mediation to enhance a client’s access to justice?
Professor Kristen Blankley, Assistant Professor of Law at the University of Nebraska-Lincoln has written an insightful scholarly article on this topic that brings together her dedication to access to justice, her commitment to the rule of law and her experience as a practicing mediator serving the public in Nebraska. She opens by stating:
This Article suggests a new model for attorney representation based on the combined use of limited scope representation and ADR processes to give otherwise unrepresented parties greater access to justice. Although none of these three concepts (i.e. access to justice, unbundled services, and ADR) are new, tying them together in this manner has yet to be considered in the scholarly literature. In addition to providing new resources for clients, attorneys could expand their practices, gain additional clients, and increase their revenue, all while helping represent the otherwise unrepresentable. As discussed in more detail below, these ideas could also alleviate the court systems as well as provide additional avenues for law schools and legal aid providers to provide services.
Professor Blankley starts with a very helpful analysis of the challenge of the self-represented litigant (the “pro se problem”) and concludes, as we have in Canada, that “many people who want representation simply do not have access to attorney services.” She lists the major disadvantages they suffer which deprives them of true access to justice:
- They are unfamiliar with the law and procedure
- They have fewer legal research resources
- They face biases from Judges and opposing counsel
- They are unable to value their own cases
- They are less likely to be aware of and understand alternatives to litigation (such as mediation) and whether those options would be beneficial in their case
- Ultimately, they are more likely to lose in court
She concludes that everyone would benefit if these parties had access to legal representation – in some form.
Unbundling provides a promising answer but, to date, implementation has been limited and efforts have focused primarily on document drafting (“ghostwriting”) and limited court appearances. Professor Blankley questions the real value to the litigant of this piecemeal, litigation-focused approach:
…all the lawyer has done is help the client turn one corner in the large labyrinth of the litigation process. The client is then left to fend for herself through the rest of the labyrinth, encountering all of the difficulties described [above].
Instead, she suggests that, when asked to undertake an unbundled service, lawyers can provide real value by stepping back and considering what is really important to the client (her underlying interests, goals and needs) and structuring the unbundled assistance towards those goals. Many clients don’t really want the litigation process but they don’t know there are alternative ways of solving their legal problems.
These new lawyer roles could include:
- Negotiation counselling (including acting as “settlement counsel”)
- Negotiation representation
- Mediation preparation (as discussed in my last Slaw post)
- Mediation representation
- Arbitration counseling
I would like to add to this list:
- Triage and assessment services: based on the client’s underlying interests, needs and goals, what process would work best? In some cases it will be the court system; in others mediation would best match the client’s needs
- Providing a legal opinion on the likely success of the client’s claim or defence
- Providing legal advice at strategic points during a negotiation or mediation
- Agreement drafting: Translating an MOU formulated in mediation into a binding agreement
- Independent legal advice: advising the client on the draft agreement before signing
- Providing referrals to other types of services (counselling, financial advice, housing services etc.)
Benefits to the client include:
- Greater voice and participation
- A way to balance bargaining power
- Increased empowerment and autonomy
- Value for money
All of which we know leads to increased satisfaction with the process.
The article includes a shopping list of benefits for the lawyers (including increased revenue) and the court system. She also suggests this type of unbundling as a viable model for legal aid and pro bono legal service providers.
Some of this is already happening in BC. My mediator colleague Renée Collins Goult coordinated a unique unbundled legal service as part of a family mediation for two represented spouses. She maintains her Law Society membership but no longer practices law and advises her family clients ahead of time that she does not draft the agreement coming out of mediation. She says:
I recently concluded mediation with family clients, and sent my MOU to a family lawyer to draft the Agreement. Prior to the start of the process, I advised both parties of my practice, confirmed the name of the lawyer with whom I have this arrangement, and included reference to the arrangement and the lawyer in my own Agreement to Mediate. The lawyer I worked with is a big proponent of mediation, a member of a Collaborative group, and is happy to provide the ‘unbundled’ service. Both parties had counsel who were apprised up front of the arrangement, and who provided advice along the way. Once the Agreement was in approved form (i.e. parties agreed it reflected the agreement as set out in the MOU), it was reviewed by the parties’ respective counsel. I was not a part of the execution process.
While it may be challenging for the lawyer to come in “cold” to the negotiation to draft the agreement, in Renée’s view these issues can be addressed through a thorough retainer letter and limited scope contract (in addition to conversations and instructions).
There is significant potential here for lawyers and mediators to work together to improve access to justice.