Arizona State University (ASU) – Sandra Day O’Connor College of Law
March 1, 2010
Fordham Urban Law Journal, Vol. 37, p. 419, 2010
The article begins with a description of the proportion of cases in mediation involving unrepresented parties and the policies and practices regarding representation in different mediation contexts. The core of the article examines empirical research findings regarding the effect of representation on several dimensions of the mediation process, including preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party “voice” and participation in mediation, and the tone of the session. In addition, the article examines the effect of representation on mediation outcomes, including the likelihood of settlement in mediation and the fairness of agreements reached. The studies find few differences consistently associated with representation, suggesting that unrepresented parties might face fewer problems in mediation, and lawyers might create fewer problems, than some claim. But the available research is too limited to be able to conclude that lawyers either play an essential role in mediation or are not needed, or that they are particularly helpful or detrimental to the mediation process. Additional findings show that how lawyers represent clients during mediation is related to parties’ assessments of mediation and settlement. The article concludes with a discussion of the additional research that is needed to inform policies and practices regarding representation in mediation.