The mediation world seems to be starting seriously to engage the issue of self-represented litigants. Indeed, last week at the ABA Conference of the Section on Dispute Resolution, I was on a panel on the subject with Heather Scheiwe Kulp, Bonnie Powell, and Stacey Tutt, all of whom are powerfully engaging the issue in their very different work situations.
The issue is really important, because for many of the self-represented, the only professional they encounter in the resolution of their case will be the mediator. If the mediator does not provide information, the party will be “flying blind,” and their ignorance may cause them to accept an inappropriate agreement. They may leave the mediation room apparently accepting, but if they ever find out their error, it is unlikely to build trust in either mediation or the legal system.
However, traditionally there seems to have been very real reluctance in the mediation world to take on an engaged informational role. Indeed, many mediators seem to feel that the provision of information about law and process is prohibited by the Standards governing the profession. While, of course, state-specific rules may be different, there is in fact a strong case to be made that the national Model Standards of Conduct for Mediators, far from prohibiting such a role, authorize it.
My own analysis starts with Standard VI. A 5:
The role of a mediator differs substantially from other professional roles. . . . A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.
This Standard does not require the giving of information, but it does explicitly authorize it, subject only to the reasonable and indeed obvious limitation that the mediator be “qualified by training or experience to provide [it.]”
The possible need for such information is underlined by Standard VI. A 10:
If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
It would seem that in many cases it is the lack of information that is acting as the barrier to meaningful participation in the mediation. It is also interesting to compare this language with Comment 4 to Rule 2.2 of the ABA Model Code of Judicial Conduct, dealing with the analogous problem of the self-represented litigant in the courtroom.
It is not a violation of this [impartiality] Rule, however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.
Moreover, the argument that Standard VI. A 10 supports an informational role is bolstered by Standard I A:
A mediator shall conduct a mediation based on the principle of party self- determination. Self-determination is the act of coming to a voluntary, un-coerced decision in which each party makes free and informed choices as to process and outcome. . .
I find it hard to envision uninformed self-determination.
Some have cited to Standard IA 2 as prohibiting a mediator from acting in an informational role. However that is an over-reading. The language is as follows:
A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
While that Standard does indeed excuse a mediators failure to “personally ensure” that choices are fully informed, it does nothing to prohibit the attempt. On the contrary, it suggests a way helping a party become informed (describing the value of other professionals), but does not in any way limit the mediator to that method.
Viewed as a whole, therefore, I beleive that the Standards not only do not forbid, but indeed authorize an informational role, provided the mediator is prepared by training or experience to do so.
Of course, a decision that playing an informational role is permitted is very different from deciding when it is appropriate, how it should be played, how mediators should be trained to play it, whether, if ever, it should be required, and what the educational implications of such a requirement might be.
There should all be matters for detailed future discussion. I would add, however, that these are issues that are being engaged in the parallel area of judicial engagement in the self-represented courtroom, and I would link to two articles, here and here, that I have recently written in the Judges Journal on that general area.
I would also add that the discussion of the neutral and engaged role of both judges and mediators has become both more important and more urgent with the recent Supreme Court decision in Turner v. Rogers, discussed here. That decision discusses minimum due process standards in self-represented cases, and focuses on issues of fairness and accuracy.
I would strongly urge those working in both the access to justice and mediation worlds to engage these issues. This is a huge part of the system. I hope this post can encourage that discussion. Please comment and share.
Update (April 25): The Standards of Practice for California Mediators are very helpful and clearly are consistent with this approach. Here is part of Standard 3: STANDARDS FOR CONDUCTING A MEDIATION (Bold added).
In an attempt to reach an informed, voluntary agreement, appropriate Mediator behavior may include, but is not limited to, providing information about the process, addressing obstacles to communication, assisting the participants in defining the issues, providing impartial substantive information, exploring alternatives for resolution, and building the capacity of the parties to make an informed decision. Subject to duties of nondisclosure of confidential information, a Mediator is obligated to be truthful, and should allow participants the opportunity to consider all proposed options. A Mediator may terminate the mediation if, in the Mediator’s judgment, further discussions would be unproductive. Mediation is not the practice of law. A Mediator may generally discuss a party’s options including a range of possible outcomes in an adjudicative process. At the parties’ request, a Mediator may offer a personal evaluation or opinion of a set of facts as presented, which should be clearly identified as such. A Mediator should not give any participant legal or other professional advice. A Mediator should encourage participants without legal representation to seek independent legal advice before signing any legally binding agreement. If a Mediator believes that the participants may not be capable of participating in informed negotiations, or if a Mediator is asked for professional advice other than relating to the mediation process, the Mediator should suggest that the participants seek advice from appropriate resources. A mediator must disclose in writing any personal or financial interest or relationship if recommending the services of specific professionals.
I think this language speaks for itself as authorizing an informational role.