Mediating With A Pro-Se Party

By Jay B. Watson December 18, 2023 Posted in Mediation Share

The role of a mediator, acting as a neutral and impartial third person, is to encourage the resolution of a dispute by facilitating a process, which will provide the parties an opportunity to resolve their dispute by agreement.  It is up to the parties, not the mediator, to determine whether and, if so, on what terms to resolve their dispute.  While the mediator may assist the parties in their resolution efforts by providing relevant information or helping them obtain such information, the mediator is responsible for honoring a party’s right of self-determination and acting with impartiality.  How, if at all, may a mediator’s obligation to fulfill these responsibilities be affected when one or more of the parties to a dispute are proceeding as a pro se litigant? 

 In this mediator’s experience, many pro se litigants have limited understanding of certain terms or provisions commonly used in a mediated settlement agreement or how such terms or provisions may adversely affect their legal rights or obligations.  Because the pro se litigant is unrepresented by counsel, she may look to the mediator to explain the meaning or effect of these terms or provisions.

“Consistent with standards of impartiality and preserving party self-determination, a mediator may provide information that the mediator is qualified by training or experience to provide.”[1]  If the mediator is also a licensed attorney, he may be qualified by training or experience to explain the meaning or legal effect of certain terms or provisions of a mediated settlement agreement.  This does not mean, however, that the attorney mediator may provide a pro se litigant with legal advice.  Instead, if a mediator believes a party fails to understand certain terms or provisions of a mediated settlement agreement or fails to appreciate how such terms or provisions may adversely affect her legal rights or obligations, the mediator shall advise the party of her right to seek independent legal counsel.[2]  Additionally, while a mediator is not required to advise a party as to the legal ramifications or consequences of a mediated settlement agreement or proposed agreement, the mediator has a duty to advise a party of the importance of understanding such matters and give the party an opportunity to seek such advice if the party so desires.[3] 

During your next mediation involving a pro se party, you may be asked one or more questions about the meaning or effect of certain terms or provisions of a mediated settlement agreement or proposed agreement.  In responding to such question(s), make sure to maintain impartiality, and avoid any response which may override a party’s right of self-determination.  If the question(s) asked lead you to believe the pro se party fails to understand or appreciate the meaning or effect of how an agreement or proposed agreement may adversely affect her legal rights or obligations, advise the party of her right to seek independent legal counsel.

 

[1]  Fla. R. Cert. & Ct-Apptd. Mediators 10.370(a)

[2]  See Fla. R. Cert. & Ct-Apptd. Mediators 10.370(b). 

[3] See Committee Notes to Fla. R. Cert. & Ct-Apptd. Mediators 10.370.