MCLE Self Study: Ethical Pitfalls of Mediating with Self Represented Litigants

Self-represented litigants pose unique challenges in every aspect of litigation. The process of filing a lawsuit, bringing or responding to a motion, conducting or responding to discovery, and presenting evidence and arguments at trial all require skills, knowledge, and experience that the self-represented litigant typically lacks. No wonder many self‑represented litigants turn to mediators for help resolving their claims.

Serving as a mediator in a case where one or both parties do not have counsel can create ethical dilemmas for the mediator. California has not adopted a code of ethics that governs mediators in private settings. Attorneys acting as mediators continue to be bound by the California Rules of Professional Conduct. Mediators in court-connected mediation programs, such as the reduced fee mediation program provided by the Contra Costa Superior Court, are bound by the standards of conduct contained in the California Rules of Court, Rule 3.850 et seq.  While these Rules do not govern all mediations, they provide a useful touchstone for the mediator and are the basis of this article.

The best practice is for the mediator to encourage the parties to obtain counsel in advance of the mediation. When mediation participants are not represented, the mediator may often find herself making ethical decisions throughout the course of the mediation. The fundamental right of the parties to make their own decisions is set forth in Rule 3.853, which provides that:

A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must:

(1)        Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties;

(2)        Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and

(3)        Refrain from coercing any party to make a decision or to continue to participate in the mediation.

At first reading, this seems a simple concept. The parties will evaluate their respective positions, make decisions, and resolve the case – if they reach a voluntary agreement. But, what if one party has an attorney, who is taking positions not supported by applicable law, with the result of an unfair result to the unrepresented party? Can the mediator ethically explain the laws to the unrepresented party if doing so is necessary to assure a fair result? Rule 3.857(b) provides guidance, explaining that “A mediator must conduct the mediation proceedings in a procedurally fair manner. ‘Procedural fairness’ means a balanced process in which each party is given an opportunity to participate and make uncoerced decisions. A mediator is not obligated to ensure the substantive fairness of an agreement reached by the parties.” (emphasis added). As long as the mediation is conducted in a balanced process, the rules do not require the result to be fair.

There is some flexibility in what the mediator can convey. Mediators are often selected because of their familiarity with a particular area of law. Indeed, the Contra Costa Superior Court program lists mediators by area of expertise. Rule 3.857(d) explains that “Subject to the principles of impartiality and self-determination, a mediator may provide information or opinions that he or she is qualified by training or experience to provide.” The drafters’ notes for this rule explain:

[A] mediator may (1) discuss a party’s options, including a range of possible outcomes in an adjudicative process; (2) offer a personal evaluation of or opinion on a set of facts as presented, which should be clearly identified as a personal evaluation or opinion; or (3) communicate the mediator’s opinion or view of what the law is or how it applies to the subject of the mediation, provided that the mediator does not also advise any participant about how to adhere to the law or on what position the participant should take in light of that opinion.

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This rule does not determine what constitutes the practice of law. . . . A mediator should exercise particular caution when discussing the law with unrepresented parties and should inform such parties that they may seek independent advice from a lawyer.

When a party has an attorney, the mediator can often use skillful questions to bring out the benefits of resolution and the risks of continued litigation. Mediators may ask: “What are the primary legal or factual hurdles you will need to overcome? What remains to be done before trial? What costs and legal fees will the party incur if the matter is not resolved? What is the verdict range for recent cases of this type?” If the mediator obtains information harmful to the represented parties’ case in private caucus, the attorney will almost certainly demand that the mediator keep that information confidential. The attorney will also often request that the mediator advise the unrepresented party about facts or legal authorities helpful to the represented party.

In a case where both sides are represented, the mediator can convey the information and feel (reasonably) confident that the attorneys will analyze the information conveyed and explain the risks and benefits to their clients. But, when a party is not represented, asking questions about the risks may cause the party to believe that the mediator sees critical flaws in the case. The mediator needs to evaluate whether conveying only the risks (as requested by the other side) creates a situation that is procedurally unfair. Moreover, what if the mediator’s “training or experience” leads him to recognize fundamental flaws in the represented party’s case? Most mediators would never point out that the case was not timely filed and advise the defendant against settling. But, some mediators are comfortable explaining the concept of the statute of limitations and allowing the unrepresented party to determine whether the case was timely filed. Others would recommend that an unrepresented party read more about “affirmative defenses.” When a mediator is not comfortable with the options, the safest course is to urge the unrepresented party to seek independent legal advice before entering a settlement.

If the unrepresented party declines to seek outside counsel, and the mediator “suspects that” the “participant is unable to participate meaningfully in negotiations,” Rule  3.857(1) gives the mediator the option of withdrawing or suspending or terminating the mediation. This must be done, however, “without violating the obligation of confidentiality and in a manner that will cause the least possible harm to the participants.” Id. Thus, even disengaging from the mediation creates ethical risks for the mediator.

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