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Abstract

This Article suggests that our failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. Although legal representation is no doubt more important in some contexts than others, it is wrong to make the binary assumption that legal representation is always more important in litigation than in ADR processes; legal representation may often be critically important in ADR processes. Because many disputes will be finally resolved in ADR and because legal representation can be equally or even more important in ADR than in litigation, we need to focus simultaneously on improving representation in both ADR and litigation. These insights need to be considered by courts regulating ADR processes and examining right-to-counsel arguments in those processes, by policymakers examining how access to counsel can be improved, and by attorneys and legal services organizations determining how to allocate their scarce resources.

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