Ten Tips for making mediation more productive and peaceful
No one ever said practicing law or mediating cases was going to be easy. If it was, then just about anyone could do it and that’s emphatically not the case. However, the complexity involved doesn’t stop everyone from taking on the legal system pro se with no training or skills and expecting justice to be best served.
The self-representing claimant certainly has a place in our legal system. Some people cannot afford an attorney, some people don’t trust attorneys, and at the end of the day everyone has the choice to exercise his or her legal rights as they see fit. That said, on those days when you, a trained mediator, encounter a pro se party – you have to acknowledge that your job just got a little bit trickier.
In my longtime career as lawyer, judge and mediator, I have encountered a variety of pro se parties and they fall into several general types. First, there is the “classic pro se” claimant. This person may feel beaten up by the system and is both bitter and pessimistic about the outcome regardless of any assurances or additional consideration offered on the mediator’s part.
You will also come across the “delusional pro se” claimant. This person has watched enough reality TV shows and courtroom dramas to believe he or she is embodying the spirit of Clarence Darrow himself. This pro se feels equipped to win with style and ease and is largely unconscious to the reality and challenges that face the unrepresented in the court system and even at mediation.
Lastly, there is what I call the “manipulator” claimant. Occasionally, there is an insincere sycophant who manipulates those around him in a most cheerful and overly polite manner. Perhaps a bit conniving, this party is determined to muck-up the wheels of justice while grinning sheepishly and milking the mediator for legal advice and special favors with his or her “aw shucks” antics.
As a mediator, you can keep mediation from turning into a three-ring circus as between a pro se litigant and a trained attorney. The theme of my advice is simple: “start on your right foot” and avoid reaching the “end of your rope.”
Ten Tips for Mediators
- Explain in the opening conference, and re-state each time you enter a room, that you cannot be the lawyer for the pro se party.
- Encourage pro se to phone a friend for help to evaluate an offer.
- Provide calculator and assistance with math.
- Maintain conversation and negotiation.
- Address the cost of litigation in dollars, emotional stress, and lost work hours and recreation time.
- Help the pro se articulate what would be a satisfying result. Suggest alternatives such as non-disparagement provisions, avoiding certain contact locations and payment schedules.
- Reiterate the importance of closure.
- Ask questions to help the pro se assess an offer. Give offers a chance to be understood, even if rejected at first.
- Step out of the room and give the pro se space to think.
- Take a deep breath, do not give up too soon, and avoid the end of your rope.
The more time and effort you invest during the mediation involving a pro se claimant, the better your rewards will be as you march toward an outcome. It is possible to manage the expectations presented by the pro se claimant and the value of patience should never be underestimated. Everyone in the action will appreciate your consideration and it will go far in solidifying your reputation as a competent mediator.