Prof. Sharon Press joined Prof. Lela Love, Prof. Michael Colatrella and Prof. Ellen Waldman at the ABA Dispute Resolution Section Spring Meeting in Seattle for a discussion of a phenomenon raising highly-charged challenges for practitioners: What are a mediator’s 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? 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.
Prof. Colatrella noted that litigants may be unaware of legal standards, rights, and remedies that are applicable to their claims, and conflate “fair” with “legal” in their pursuit of a resolution of a perceived wrong. They may not understand what a court can or cannot award, or the procedural hurdles to judicial relief. They may not understand the mediation process itself – how to prepare for it, the roles of the participants, or the risk/benefits of proposed offers. They may be inexperienced and uninformed negotiators. There may have language barriers in speaking, listening and reading, and may be financially unsophisticated or inept.
In such a context, how can mediators promote just results while fulfilling their duties of neutrality? 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. And informed consent to participate is different from consent to an outcome. The first is a clear and attainable duty of the mediator. The second may not be. A 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 – even if the mediator acknowledges that the party is uninformed of those rights. 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. Prof. Colatrella finds this a step too far. This assistance is detrimental to the other, represented, party.
Informed consent can be promoted without treading on partiality, he urged. 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.
Prof. Love suggested that an increase in pro se litigants may not be a “problem” 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. Why do we lawyers assume that an unrepresented party is burdened by not having information or guidance that a lawyer could provide? And is the mediator the best, or the only, source of legal information for parties?
Mediation can help pro se litigants in many ways: They are given the chance to tell their story to the other side and to hear the other side’s story. They can learn the other side’s legal arguments. With this information they can decide whether to pursue or settle the claim with more information than they had before the mediation took place. All of these are attributable to the process, not the lawyer.
Mediators, then, can emphasize these beneficial aspects of mediation. Mediators should explain the context and the process of the mediation and point out opportunities to learn though the process. They can clarify their limitations with respect to offering legal advice. Prof. Love says these are duties, not just opportunities. 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. 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 “What if you learned that your claim was barred by the statute of limitations?” but not go further and give the legal conclusion itself. Where there is no settlement, the parties can go to court better aware of their options and what is expected of them. 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.
Prof. Waldman took a different view. To her, pro se litigants simply do not have the information they need to make serious decisions, and the growth of pro se litigants is to be regretted. 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. They are unaware of consumer protection, anti-discrimination and other protective statutes whose benefits they might seek. A 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? Suspend the process? Urge that the party seek advice and information from another source? Or does the mediator actually recite the law prohibiting usurious loans paid out of welfare income? 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. There 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. Experienced small claims court mediators know about consumer protections – should they not bring those provisions to the attention of both parties? Put otherwise, does a mediator have an obligation to ensure that the provisions of settlement agreements comply with consumer protection laws? And is the answer different if the mediation takes place by order of the court? Is there any way that the mediator can ensure that the process has both attributes of informed decision-making and impartiality?
Prof. Press took up a further question: Are the mediator’s duties different in mediations with unrepresented litigants (such as court-connected civil claims) or pro se disputants (non-court processes such as peer mediation in schools, or community center conflicts)? Mediation was independent and had its own rules and virtues until it was pulled into the court, at which time things changed. People who dispute want a resolution; by contrast, litigants who file a case in court seek a legal determination of their rights and remedies. Mediating the former implicates different duties, perhaps, from mediating the latter. Parties’ expectations may differ as well. Do parties entering into a transformative process value the mediator’s legal expertise as much as parties to an evaluative mediation? 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. If courts no longer directed self-represented litigants to mediation, would this problem no longer be an ethical one?