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Ten Good Ways to Annoy a Family Mediator

July 29, 2013 at 3:40 PM

Difficulty

Mediators and counsel prefer to mediate with self-represented parties.
This is because as a general rule, it is more difficult to achieve good outcomes with self-represented parties than it is with legally represented parties.
There are many reasons why this is so, but they fall into one of two categories: the personal characteristics or circumstances of self-represented parties, and the lost benefits of representation by lawyers.

Personal Characteristics

Self-represented parties are just that for a reason.
Some people eschew legal representation by dint of personality. Put bluntly, they may be socially isolative and inadequate, suspicious of authority, conceited in opinion, naively unaware of complexities, or penny-pinching in attitude.1.
Others are simply impecunious or understandably worried about their finances. Some may wish to avoid a mire of legalism based on unhappy previous experience. And others may have received unhelpful advice that legal representation is not necessary.
Of particular concern is that some self-represented parties seek to avoid the moderating influence of lawyers in order to maintain unreasonable positions.

Lost Benefits

The benefits of legal representation include on the spot legal advice, the clear presentation of facts and argument, another set of eyes and ears to observe what is occurring, a source of objectivity, a sounding board for ideas, expertise in the art of negotiation, and personal support.
All these benefits are lost to self-represented parties. There is much truth to the old adage that he who represents himself has a fool for a client.

Ascertain the Reasons

It is helpful when embarking on a mediation to consider why a party is self-represented. This has two purposes.
Firstly, it is possible that timely steps might be taken to persuade the party that legal representation is in their interests.
Secondly, if the party remains unrepresented, then it is important for both mediators and counsel to take the reason for that into account when preparing for and participating in the mediation.

Dealing with the Self-Represented Party

The following are some general suggestions about how mediators and counsel should deal with self-represented parties.2.
Explain the process. This is primarily the job of the mediator. Counsel should have already done so with their own client. If parties know from the outset what is going to happen and realise the process is a fair and considered one, their willing and effective engagement in the process is more likely. The various stages of the process should be explained as they are reached. The realisation that the process is a progressive and structured one gives comfort and reassurance to parties.

Explain the objective. Mediators should not assume an understanding by parties that the objective is for an agreement or memorandum to be signed in full and final settlement before the mediation concludes. Explain and emphasise this. This will assist keeping parties properly focused.

Obtain buy-in to the objective. It is crucial that parties are committed to achieving a negotiated settlement. The commitment must, importantly, carry with it the concomitant realisation and acceptance that it is necessary to maintain an open mind and engage in compromise. These two features of successful negotiation should be spelt out. Commitment towards achieving settlement should be sought and obtained. Once commitment is declared, it is rarely resiled from. If no commitment is offered early in the process, that may indicate that it is pointless to continue the mediation.

Identify and address fears and concerns. Self-represented parties are at times difficult and frustrating to deal with. It is important not to become stuck at that level. Instead probe for deep-seated anxieties and insecurities. Then start providing the necessary reassurances. You will find that suddenly the conversation becomes a whole lot more positive and constructive.

Be friendly. An aggressive negotiation style by counsel towards self-represented parties is problematic, because the engagement is much more personalised than is the case with parties who have their lawyers beside them. Better to be friendly but firm.

Be fair. This is not as easy as it sounds. There is a fine balance between counsel fairly, as opposed to unfairly, exploiting an opposing party's lack of representation. The former is perfectly legitimate. The latter is not. Equally, mediators have to apply two principles between which there may be some tension. First, parties should be allowed to enter into whatever bargains they choose, including poor bargains3, and second, the bargaining process should be fair. Two touchstones are helpful in this ethical quagmire. First, deceptive or overbearing conduct is unacceptable. Second, ask oneself whether the process and outcome will be viewed by the parties as fair, days or weeks after the mediation has concluded; if not, there is a danger that the settlement agreement will unravel and become counter-productive.

Conclusion

No mediation is without its difficulties. Having self-represented parties is just one such difficulty. Mediators and counsel alike have no choice but to work with what they are given. The trick is to understand what has been given and work it to advantage.

1. My descriptors are not intended to demean self-represented parties. Such characteristics are possessed by only some self-represented parties. The strength of such characteristics may vary from the mild to the extreme.

2. The suggestions apply to represented parties as well, but are particularly important for self-represented parties.

3 New mediators especially are uncomfortable with parties performing poorly in negotiation. But it is not the role of the mediator to intervene and to provide "balance" in these circumstances. To attempt to do so may result in allegations of partisanship.

 

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Category: Mediation