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Just Resolutions

February 2025 – Court ADR Committee

Changing Perceptions of Mediation Through Limited Scope Representation

Jennifer Gartlan

Changing Perceptions of Mediation Through Limited Scope Representation
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In October 2024, the ABA Mediation Court ADR Committee and various federal, state, local, and private ADR organizations met with a delegation of government officials, educators, and mediators from Kosovo. These sessions were sponsored by the U.S. Department of State Bureau of International Narcotics and Law Enforcement and hosted by the Federal Mediation and Conciliation Services (“FMCS”) as part of an effort to enhance court-sponsored mediation services in Kosovo. As part of a panel presentation made by representatives from the District of Columbia Court of Appeals (“DCCA”), the Kosovo delegation explored the use of limited scope representation as a potential mechanism for mediation program development.

Court-based mediation is a relatively new phenomenon in Kosovo. In 2008, the Assembly of the Republic of Kosovo (“Assembly”) passed Law no. 03/L-057, Law on Mediation, which provided the initial framework for court-based mediation and authorized the use mediation to resolve commercial, family, labor, other civil, administrative and criminal matters. Subsequently, in 2018, the Assembly passed Law No. 06/L -009, Law on Mediation, which inter alia authorizes the use of mandatory mediation for family law disputes such as alimony, custody, visitation, division of marital property and claims “related to rights and obligations deriving from the rights of servitudes and compensation of expropriated properties.”

Anecdotally, most parties participating in court-based mediations are unrepresented. This is because Kosovo’s tariff system for attorney compensation does not contemplate mediation representation. Another factor is that cases currently ordered into mediation are not legally complex so parties represent themselves. As court-based mediation continues to evolve in Kosovo and more complex matters are referred to mediation there will be a significant need for representation to ensure that parties make fully informed decisions in the mediation process.

The challenges discussed above are not unique to Kosovo. US court-based mediation programs often grapple with attorney participation and engagement. For example, US programs encounter pro se parties who are unable to retain counsel because of perceived or actual inability to pay legal fees or other legal concerns. In other cases, courts encounter attorneys who perceive mediation as little more than a “check the box” requirement in the litigation process, which is a significant disservice to the client as these attorneys often come to mediation unprepared. There are also attorneys who are uncomfortable with mediation because they lack the requisite skills and training needed to provide quality mediation representation. Authorizing limited scope representation for mediation representation enhances access to justice. It places an emphasis on the mediation process and supports attorney’s and their client’s efforts to explore attorney fee options that more suitably meet their needs and objectives. Courts and other organizations can also utilize limited scope representation to provide pro bono services to indigent parties and to promote court educational and skill development initiatives.

Limited scope representation authorizes attorneys to “provide assistance within the attorney-client relationship but with that assistance limited only to specified tasks or to certain portions of the case.” For example, in the District of Columbia, DCCA Administrative Order 18-02 authorizes the use of limited scope representation for mediation of litigated appeals. Within the mediation context, limited scope representation means that the attorney represents the pro-se party throughout the entirety of the mediation process. The party remains pro se for other litigation tasks such as addressing a motion for summary affirmance or preparing the appellate brief. The mechanics of Administrative Order 18-02 are simple: at the onset of representation, the attorney and pro se party execute a confidential notice of representation, which the attorney files with the Mediation Program Coordinator. The attorney then represents the party for the duration of the mediation process. At the completion of the mediation process, the attorney files a confidential notice of completion with the Mediation Program Coordinator. See DCCA Administrative Order 18-02.

DCCA’s authorization of limited scope representation immediately impacted case eligibility for mediation. DCCA, like most appellate courts, requires mediation parties to be represented per DCCA Administrative Order 16-04. By providing the option for attorneys to represent litigants exclusively for the mediation phase of the appeal, cases that would otherwise be fully litigated were referred to appellate mediation and resolved. Attorneys who would have otherwise rejected appeals because of a client’s limited ability to pay or other concerns associated with full litigation of the appeal (including potential remand) began to accept matters on a limited scope basis. For example, in certain mortgage foreclosure matters, litigants retained attorneys of their choice to help them mediate creative solutions allowing families to remain in their homes. In the commercial context, limited scope mediation can provide an opportunity for an attorney to represent a client on a discrete matter. If the case successfully settles, the attorney can expect to obtain additional work from the client. If the case does not settle in mediation, but the attorney and client have formed a positive working relationship, they can enter into a new agreement to allow for full representation in appellate litigation.

For clients who are unable to retain counsel, but wish to mediate their appeals, the DCCA established the Pro Bono Mediation Counsel Panel (“PBMCP”). Under this initiative, DCCA’s Mediation Program Coordinator (“MPC”) vets attorneys who apply to serve as volunteer PBMCP attorneys. The MPC then submits membership recommendations to the Chief Judge for approval. The MPC pairs PBMCP attorneys with prospective clients based upon the attorney’s subject matter interest and experience, availability, and the attorney’s and client’s respective personalities. After conducting a conflicts check, the attorney meets with the prospective client for an initial consultation before executing the confidential notice of representation and moving forward with the mediation process. Matters where PBMCP attorneys are assigned usually settle because both parties to the dispute share an interest in expeditiously resolving the matter. In many cases, opposing counsel expresses a preference for working with the PBMCP attorney rather than attempting to negotiate or litigate with the pro se party. As such, there is an incentive to use mediation to streamline the resolution process. The PBMCP has successfully resolved various types of appeals including administrative, employment, family law, foreclosure, and other civil matters.

The PBMCP also provides educational opportunities for attorneys. PBMCP attorneys attend mandatory training and other periodic educational sessions. Senior level attorneys often use PBMCP cases to train associates in mediation representation. Newly admitted attorneys also enlist senior attorneys at their firms to join the PBMCP so that they may gain experience and join the panel themselves. The DCCA introduced a law student component to enhance volunteer succession planning. Law students can volunteer to assist PBMCP attorneys and receive credit to meet bar admissions requirements. The program highlights its volunteer mediators and PBMCP attorneys through the DCCA Appellate Mediation Speaker Series, Mediation Week programming, and other special panel events. Most of these events are open to the public and provide an opportunity for attorneys and mediators to establish themselves while training others in important mediation-related knowledge, skills, and trends. The DC Courts recognize individuals and organizations that make outstanding contributions to pro bono service, providing additional recognition and goodwill for attorneys and organizations that participate in the program.

Court-based programs in Kosovo and the US are working continuously to enhance their mediation programs. Attorney engagement is vital to program growth and development. Limited scope representation can enhance attorney participation and engagement as it can be used to address attorney compensation requirements, maximize the use of pro bono service, and/or further education initiatives. Specifically, the DCCA’s authorized use of limited scope representation empowers clients and attorneys to tailor their representation arrangements to meet their specific needs whether the client pays for representation or receives services pro bono. In doing so, it shifts perceptions regarding mediation from an inconsequential step required to litigate a case to viewing mediation as a valuable process.

While the scope of representation is limited, the quality of representation is not. Attorney mediation representation is more holistic as it is driven by the immediate and actual needs of the client (e.g., need for a home or underlying commercial interests) rather than the ongoing procedural and legal demands of litigation practice. Finally, within the context of the PBMCP, the educational opportunities afforded through this initiative foster continuous learning, which engages students and attorneys in all stages of practice and provides volunteers with opportunities to share what they have learned with others in the court community and ADR field.

The author would like to thank David Moora from the Federal Mediation and Conciliation Service and Yll Zekaj, Certified Mediator, for their insight into current Kosovo mediation trends and challenges and for providing an overview of the structure for payment of legal services in Kosovo.

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