{"id":1586,"date":"2015-04-21T22:16:37","date_gmt":"2015-04-22T02:16:37","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=1586"},"modified":"2015-04-21T22:16:37","modified_gmt":"2015-04-22T02:16:37","slug":"mediating-with-an-unrepresented-party","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2015\/04\/mediating-with-an-unrepresented-party\/","title":{"rendered":"Mediating with an Unrepresented Party"},"content":{"rendered":"

Prof. Sharon Press<\/a> joined Prof. Lela Love<\/a>, Prof. Michael Colatrella<\/a> and Prof. Ellen Waldman<\/a> at the ABA Dispute Resolution Section Spring Meeting in Seattle for a discussion of a phenomenon raising highly-charged challenges for practitioners: \u00a0What are a mediator\u2019s ethical duties to a party to a mediation who is unrepresented and, in at least some respects, disadvantaged in conducting legal negotiations with parties who have the benefit of counsel?\u00a0 The speakers have personal experience mediating directly or through clinics in EEOC, landlord\/tenant, small claims court, or other contexts with varying populations that include self-represented litigants.<\/p>\n

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Prof. Colatrella noted that litigants may be unaware of legal standards, rights, and remedies that are applicable to their claims, and conflate \u201cfair\u201d with \u201clegal\u201d in their pursuit of a resolution of a perceived wrong. \u00a0They may not understand what a court can or cannot award, or the procedural hurdles to judicial relief.\u00a0 They may not understand the mediation process itself \u2013 how to prepare for it, the roles of the participants, or the risk\/benefits of proposed offers.\u00a0 They may be inexperienced and uninformed negotiators.\u00a0 There may have language barriers in speaking, listening and reading, and may be financially unsophisticated or inept.<\/p>\n

In such a context, how can mediators promote just results while fulfilling their duties of neutrality?\u00a0 The broad definition of informed consent when an attorney counsels a client or a doctor serves a patient may not apply with an unrepresented claimant. \u00a0And informed consent to participate is different from consent to an outcome.\u00a0 The first is a clear and attainable duty of the mediator.\u00a0 The second may not be. \u00a0A mediator may have a duty to explain a proposed outcome, but not to counsel a party as to (for example) the rights they are waiving by settlement \u2013 even if the mediator acknowledges that the party is uninformed of those rights.\u00a0 Implicated in this duty, were the mediator to assume it, is yet more advice as to the likelihood of the outcome were the claimant to assert those rights. \u00a0Prof. Colatrella finds this a step too far.\u00a0 This assistance is detrimental to the other, represented, party.<\/p>\n

Informed consent can be promoted without treading on partiality, he urged.\u00a0 Investigating uncovered interests, providing information, directing parties to outside resources, and even providing an evaluation can be of assistance in prompting informed consent while staying within the confines of mediator neutrality.<\/p>\n

Prof. Love suggested that an increase in pro se<\/em> litigants may not be a \u201cproblem\u201d but rather a reflection of the nature of disputes. It may be a good decision for them to choose not to be represented, and their status in mediation may be beneficial to them.\u00a0 Why do we lawyers assume that an unrepresented party is burdened by not having information or guidance that a lawyer could provide?\u00a0 And is the mediator the best, or the only, source of legal information for parties?<\/p>\n

Mediation can help pro se<\/em> litigants in many ways:\u00a0 They are given the chance to tell their story to the other side and to hear the other side\u2019s story.\u00a0 They can learn the other side\u2019s legal arguments.\u00a0 With this information they can decide whether to pursue or settle the claim with more information than they had before the mediation took place.\u00a0 All of these are attributable to the process, not the lawyer.<\/p>\n

Mediators, then, can emphasize these beneficial aspects of mediation.\u00a0 Mediators should explain the context and the process of the mediation and point out opportunities to learn though the process.\u00a0 They can clarify their limitations with respect to offering legal advice.\u00a0 Prof. Love says these are duties, not just opportunities.\u00a0 While not pressuring parties to settle, a mediator can (and should) point out logical or legal errors, just to the border of offering legal advice.\u00a0 If a party has no evidence to support her claim, she should be warned of the likely consequences. Prof. Love would go so far as to ask \u201cWhat if you learned that your claim was barred by the statute of limitations?\u201d but not go further and give the legal conclusion itself.\u00a0 Where there is no settlement, the parties can go to court better aware of their options and what is expected of them.\u00a0 Where they settle, they do so knowing they chose not to get legal advice first and that they chose to do so given more information than they had going into the process.<\/p>\n

Prof. Waldman took a different view.\u00a0 To her, pro se<\/em> litigants simply do not have the information they need to make serious decisions, and the growth of pro se<\/em> litigants is to be regretted.\u00a0 Legal norms exist to protect vulnerable segments of society, and these are the very folks who come to court without the lawyers who can help them.\u00a0 They are unaware of consumer protection, anti-discrimination and other protective statutes whose benefits they might seek. \u00a0A mediator should not simply stand by to watch an uninformed party enter into a settlement at variance with state usury law, for example. But what does a mediator do in such an instance? \u00a0Suspend the process? \u00a0Urge that the party seek advice and information from another source?\u00a0 Or does the mediator actually recite the law prohibiting usurious loans paid out of welfare income?\u00a0 Prof. Waldman would advise the usurious party, but admits that they have undoubtedly already done the risk assessment and are prepared to go forward with the risk of being found out. \u00a0There are other techniques of course; Prof. Love would ask the lawyer for the usurious party, in the presence of the litigant, whether the terms of the agreement are enforceable.\u00a0 Experienced small claims court mediators know about consumer protections \u2013 should they not bring those provisions to the attention of both parties?\u00a0 Put otherwise, does a mediator have an obligation to ensure that the provisions of settlement agreements comply with consumer protection laws?\u00a0 And is the answer different if the mediation takes place by order of the court?\u00a0 Is there any way that the mediator can ensure that the process has both attributes of informed decision-making and impartiality?<\/p>\n

Prof. Press took up a further question:\u00a0 Are the mediator\u2019s duties different in mediations with unrepresented litigants (such as court-connected civil claims) or pro se<\/em> disputants (non-court processes such as peer mediation in schools, or community center conflicts)?\u00a0 Mediation was independent and had its own rules and virtues until it was pulled into the court, at which time things changed.\u00a0 People who dispute want a resolution; by contrast, litigants who file a case in court seek a legal determination of their rights and remedies.\u00a0 Mediating the former implicates different duties, perhaps, from mediating the latter.\u00a0 Parties\u2019 expectations may differ as well.\u00a0 Do parties entering into a transformative process value the mediator\u2019s legal expertise as much as parties to an evaluative mediation?\u00a0 She suggested that mediation had objectives of procedural justice, respect, and restoring relationships that participants find preferential to court adjudication, independent of legal concerns with respect to the participants.\u00a0 If courts no longer directed self-represented litigants to mediation, would this problem no longer be an ethical one?<\/p>\n","protected":false},"excerpt":{"rendered":"

Unrepresented parties can raise unique ethical, professional and personal challenges to mediators and to mediation.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,14],"tags":[42,15],"class_list":["post-1586","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-mediation","tag-ethics","tag-mediation"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1586","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1586"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1586\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1586"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1586"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1586"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}