Indigency, Secrecy, and Questions of Quality: Minimizing the Risk of "Bad" Mediation for Low-Income Litigants

Mediation can be magical. In the face of seemingly insurmountable differences, it can lead to productive resolutions far beyond what litigation could ever produce. In the hands of sophisticated practitioners and in appropriate cases, it offers a means for participants to engage in self-determination and more flexible conflict resolution. In light of how well mediation can work, it has experienced explosive growth in all areas of conflict, and in both private and court-connected contexts.

There is, nevertheless, a risk that mediators can be unskilled or, worse, affirmatively damaging. The risk is endemic to all mediation but play out in particularly troubling ways when low-income litigants participate in mediation through court-annexed programs that have few resources, high volume, and uncertain quality control.