The challenge presented by a pro se party (i.e. a party who represents himself/ herself/ itself without the aid of a lawyer) arises because of a perceived inherent power imbalance. In a matter where all parties appear without counsel (for example, a typical Small Claims Court case), the existence of pro se parties creates no apparent imbalance: all the parties are unrepresented and thus, no one party has the benefit of a trained advocate to tilt the playing field in its favor.
In other situations, the presence of the pro se can create an unlevel playing field. Party A appears with counsel, Party B decides to go it alone. Given Florida’s mandate to mediators to conduct mediations “in an even-handed, balanced matter” (Rule 10.410), what’s a mediator to do?
A genuine risk to impartiality can occur in this type of scenario. In an effort to balance the presumed advantage the trained advocate provides to his or her client, the mediator can slip into the role of de facto advocate for the unrepresented party. Obviously, this posture violates the mediator’s duty of maintaining an even and balanced session, as well as violating the mediator’s duty to remain impartial and act as a neutral party whose role is to facilitate a mutually acceptable outcome to the parties’ dispute.
Consider keeping all the parties together in joint session without escaping to caucus as a means to “cure” the mediator’s tendency to unconsciously fall into an advocacy role. Acknowledge to both sides during the mediator’s opening that there may be an imbalance in the process because the pro se party does not have counsel present. Let the parties know that while the imbalance is not necessarily fatal to the mediation process, the parties need to be cognizant that the mediator has to conduct the mediation in a way that avoids a coercive outcome. Instruct the parties that the mediator’s goal is to remain neutral, so that if either side perceives the mediator compromising neutrality, that can be brought to the mediator’s attention.
The information exchanged in private caucus is often the key to helping the parties move from their established positions to a mutually acceptable resolution. Remaining in joint session might impede this aspect of the mediation dynamic. Sharing information in an extended joint session can be an effective way to shape the parties’ positions. It is essential to remind both sides that neither side is required to answer any questions posed by the other, and to reiterate the confidentiality provisions that govern mediation. These caveats allow the parties to avoid the “free discovery” free-for-all that could derail the process.
Assuming the mediator has successfully negotiated the impartiality minefield, and the potential for coercive questioning from the represented party’s advocate, the parties may reach a point where a proposal to resolve the matter is presented. An effective way to ensure that the unrepresented party is not unduly pushed into entering into an agreement that might be adverse is to continue the mediation to allow the unrepresented party a chance to seek independent legal advice.
Keeping a mediation on track with a pro se party presents unique challenges that may require the mediator to be more explicit with the parties about the mediation process. Identifying the potential for impartiality so it can be avoided, maintaining joint session for more of the mediation and ensuring that the pro se participant is made aware of the possibility of seeking independent legal advice are all techniques that assist the mediator and the parties in reaching successful outcomes.