The Closer

A Mediation Newsletter May 2012

Patience and the Pro Se
by James Rainwater

Perhaps, it is a sign of the times or emblematic of a tight economy, but I have seen an increase in the number of cases with parties representing themselves. While the pro se party usually presents a headache for any practitioner, it is no less a burden upon the mediator. Assuming the pro se can be readily contacted, there can still be a myriad of other complications.

Parties who represent themselves often fall into one of two categories: They say they know "all about the law" and fall far short of that statement, or they say they are not familiar with the law but are "willing to fight the case all the way". Either way, it is not a pleasant scenario. Yet, these situations do arise. What can we do to lessen potential problems?

As pro se representation occurs across the legal spectrum, attorneys from all disciplines can utilize these tips. First, ensure that the most current and accurate contact information is gathered, as well as any common documents or correspondence. The mediator and attorneys alike should share this information as much and as quickly as possible. As communication is key to a successful mediation, keeping in touch with the pro se party and providing pertinent information are essential.

Second, remember that most pro se parties have limited legal training. By supplying them with as much material as is reasonable, they are more likely to feel they are being taken seriously, and thus, they are more likely to be amenable to settling the case. We don't want to patronize pro se parties and limit the available information given to them due to our perceptions of their knowledge level or lack of understanding of various legal concepts. However, at the same time, it is equally non-productive to deluge pro se parties with an overload of legalese and hyperbole.

Last and most important, have patience. If you are not a patient person, learn to be or have someone with a high degree of patience accompany you. While the mediator's role is to facilitate a settlement, it is also to assure that a level playing field is maintained throughout the conference. The mediator will not allow a pro se to be bullied; yet, the mediator is also constrained from providing any legal advice. Along with patience, the opposing counsel should bear in mind that assisting the pro se may be more beneficial than being obstructive. Our goal is to settle the case, and cooperating with the pro se party may make reaching an agreement that much likelier and quicker.

Rainwater Law