A recent conversation made me realize how little attention we have paid to what happens to the self-represented in mediation and other environments that involve a supposed neutral. After all, it is not at all unusual for states to mandate mediation, regardless of representation status.
In one sense this is a huge danger area for the self-represented: They are put into largely un-regulated, certainly non-transparent, environments, before neutrals who are largely untrained in the special challenges of dealing with the self-represented.
On the other hand, this is also an area of huge opportunity: For many of the self-represented, the mediator or other non-judicial neutral is the is the closest that the self-represented will get to an informed person with an obligation to see that fairness, in at least some sense, is provided.
We really need to start a discussion between the mediation and self-represented innovation communities about best practices, training, ethics, etc. We have, after all, found in our judicial best practices experience that the foundations for access for the self-represented already lie in the ethical principles that govern the judicial role. There is no reason to believe that the same will not turn out to be the case, particularly when we bring to the discussion the insights from the judicial community.
In particular, surely what we have learned about there being no inconsistency between engagement and neutrality will apply with great force in the mediator environment. I feel some confidence that many of the techniques for neutral judicial engagement that work well with judges will also apply, perhaps with some modifications, in the mediator environment.
I would love to hear from any who have worked in this area.
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The role of mediation in assisting pro se litigants is something many of us in both legal services funded agencies and ADR are interested in exploring. Many of the community mediation centers across the country provide dispute resolution for persons generally involved in small claims or divorce or family related situations AND WHO ARE PROCEEDING PRO SE. Most of the mediators in Tennessee are what is called Rule 31 listed and many are attorneys. Though prohibited from ‘practicing law’ while mediating, not to mention an opinion by the state attorney general that mediation is not the practice of law, I suspect there may be greater legal or law related protections if a mediator is also an attorney. However, I also wonder if perhaps mediators who aren’t attorney are better at resolving underlying problems. Would love to explore further….
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Richard, Don’t mediators just say they do this already (whether they do or not, on which I have no view)?