In my blog last week I referred to the frequent complaints I hear from lawyers and others in the justice system about the difficulty of reaching settlement in a case where one side is representing themselves.
I suggested that while it may indeed be more difficult for a case to settle when there is a SRL on one side, there are some fairly obvious reasons for this – and that if we were to examine these, we might be able to work to address at least some of them.
Criticism of SRLs for being settlement-shy is unfair if it does not also acknowledge the challenges to approaching a settlement for someone without counsel (more about that in a moment). It is also not very constructive. It is in the interests of everyone that SRLs can make better use of settlement opportunities – including but not limited to mediation – and can access practical assistance in negotiating acceptable solutions (interim, partial or complete) to their dispute.
We know that representation makes a difference in mediation – Beck & Sales (2000) report that representation affects party’s comprehension of mediation substance and procedure, and the National SRL Study (2013) found that SRLs often did not remember being offered mediation and many had minimal understanding of the mediation process.
This blog makes some initial suggestions – and hopefully begins a deeper conversation – about what we might do to make mediation work for SRLs.
In their shoes: the attitudinal dimension
If you are feeling exasperated with the last SRL you dealt with (as a mediator or a lawyer), or if you simply have not thought about this before – try imagining yourself in their place. Entangled in a bitter and apparently intractable conflict, perhaps one that affects crucial aspects of your life – family relationships, children, home, work – and finding that you cannot afford a lawyer or have already exhausted our available resources. You are struggling, spending every spare minute on your case, in order to do the very best you can. You are (naturally) highly invested in your case.
Then someone – the judge, a friend, a mediator – suggests settlement. Ask yourself, how might you react? “Seriously? You want me to mediate with him/her? Do you know that every promise s/he has ever made to me has been broken? And that s/he has a lawyer and I am all on my own standing up for myself here?”
Standing in these shoes, each of us might have a hard time with the concept of settlement. With this important acknowledgement in mind, how might lawyers and mediators help?
What lawyers and mediators can do
Hilary Linton of Riverdale Mediation – about to be honored with the Ontario Bar Association ADR Award of Excellence for 2014 – discusses some of the ways in which lawyers and mediators can help to make mediation work for SRLs in a chapter in Settling Family Law Cases – Practical Techniques for Neutrals and Advocates (ed. Lorne Wolfson, forthcoming Fall 2014).
- A mediator may need to spend more time preparing with a SRL than with a party who has a legal representative. This may be important to ensure that they are not overly intimidated by the process. As the lawyer on the other side, you might want to hire a mediator who you know will assist the SRL to think about interests and options in advance. If it helps the mediation go better, why not?
- Think about structuring mediation as a series of shorter meetings. Mediation is an exhausting process especially when you are emotionally invested. Don’t wear the SRL out and offer frequent opportunities for breaks.
- In some cases involving self-represented parties, it may be helpful to hire an evaluative mediator, or one who is at least willing to offer the SRL some private reality testing.
- Remember that as the lawyer for the other side you can still provide legal information – for example, information about legal procedure – to the SRL if your client is comfortable with this. If it helps to advance the party’s shared understanding of the process they are engaged in – and especially if it helps a SRL to make an informed decision – it is probably a good thing to offer.
- Be patient, courteous and always constructive.
A few other ideas from the NSRLP:
- Law students can be trained to be effective conflict coaches for SRLs going into mediation. They can work with a SRL outside the process – preparing and then debriefing after a session – and in some cases it may be appropriate for them to sit in as a support person.
- Mediation programs should consider offering orientation workshops specifically to SRLs. However well crafted, a flyer explaining mediation is too easily lost or put aside. Many of the fears and concerns that SRLs express about mediation need to be addressed in a workshop format with other SRLs. Some issues may be better discussed one-on-one with a mediation program staff person at intake.
- Keep offering mediation. One-time only offers are not enough. Many SRLs need time to figure out whether mediation can work for them and repeated suggestions/ invitations – including “talking about “talks” – are more likely to gain some traction.
- Lawyers who are experienced and sophisticated about mediation and collaborative negotiation can step up and play a leadership role here. The only thing worse for a mediator than working with an unbalanced table – a SRL on one side and a represented party on the other – is working with a SRL and a party represented by a mediation-unsophisticated / unfriendly lawyer. Collaborative family lawyers and lawyer/mediators are accustomed to the nuances of working towards settlement with the other side.
Why assisting SRLs to make mediation work makes sense
OK, so the world would be an easier place for other justice system participants if every SRL could have a lawyer. However, this is not about to happen.
Legal Aid Ontario recognized the importance of ILA in their recent announcement (http://legalaid.on.ca/en/news/newsarchive/1407-03_ilacertificates.asp). This is a significant innovation, but will provide ILA for a limited number of those who are currently self-represented in Ontario’s family courts.
As Hilary Linton’s paper illustrates so well, mediators and lawyers share a common interest in enabling SRLs to be functional in the mediation process.
1.If you are a lawyer, very, very few of your clients are interested in the real time, costs and uncertainties of a trial no matter how much they huff and puff. And finding a settlement requires working with the other side – this is Negotiation 101.
In The New Lawyer (2008) I called this “conflict resolution advocacy”. Conflict resolution advocacy places “the construction and creation promotion of partisan outcomes at the centre of the advocate’s role, and see this goal as entirely compatible with working with the other side – indeed, it can be achieved only by working with the other side.”
2.If you are a mediator, your responsibility is to develop and oversee a fair and effective process for the parties to use for negotiation. Working with SRLs requires special screening tools and pre-mediation preparation. The work that a mediator does to enable SRLs to be functional in the mediation process is consistent with their obligation as steward of a fair process – it does not compromise their objectivity, nor does not indicate partiality.
Redirecting our energy
Much energy is still being directed – by researchers, scholars and other commentators – towards repeating over and over that all would be well if those silly SRLs just went and hired lawyers, for goodness sakes. Tired of hearing this? So are we. Instead, let’s put our energy and our creativity into figuring out how to make the mediation process work if a party does not have access to counsel and to legal advice.
