Self-Represented Mediation

Let me make a few things clear:

1. People should not be their own lawyers in family court or in pursuing their personal injury claim with an insurance company;
2. The average person, even with due diligence, cannot cope with the power imbalance, the myriad rules, the statutes, the case law, and the techniques necessary to prepare and negotiate their own cases;
3. Even with the help of a skilled mediator, there are risks for the self-represented party, whether the other party has a lawyer or not;
4. Even a well prepared party will often lack the negotiating skills or emotional perspective to obtain a just agreement, and;
5. A failed mediation leaves the unrepresented party with all the challenges of a contested trial.

Here we will leave the subject of personal injury claims, since most of those do not go to mediation until after suit is filed, except to say, here is the link to a search of my blog for the term “personal injury”. It has 109 “hits”; enjoy: https://hunterlawfirm.net/?s=%22personal+injury%22

If you are still here, perhaps you are facing your own family law matter. Perhaps you are thinking of filing, have filed, or have been sued. If so, first re-read 1-5 above!

I have written an article expressly for the person who cannot or will not be hiring a lawyer: https://hunterlawfirm.net/when-you-cant-or-wont-hire-a-lawyer-a-possible-option/ .  I have also written a proposal for revision of the family court and civil mediation rules: https://hunterlawfirm.net/time-revise-mediation-wv/

Recently, I came upon another approach to the problem. I was contacted by one of two self-represented parties. Not sure whether they were court ordered or had just heard of me, and, for purposes of this article, I prefer not to know. They needed a mediator for their divorce.

Each paid her and his deposit and showed up. In this instance, they agreed on what they owned, what they owed, and what they earned. They had no big dispute over valuation.

The marriage had grown stale, and they were just occupying the same space. They were not bitter, just sad.

We worked out an agreement. She thought she needed financial help for five years, but he was sure she needed it for seven. So, we set it up for seven.

Then we did a rough draft of her petition. She signed it. He filed his own answer, from the circuit clerk’s office, admitting irreconcilable differences and joining in a motion to approve their agreement.

I assisted her in preparing a simple order approving it. They both signed it.

She just reported the judge was happy with the agreement and the order. and approved them. They now have their “no fault” divorce. The cost? Under $1000.

Now they just want to divide his retirement for the 26 years they were together. I think I can do that, unless they are fighting over a “survivorship” provision.

Total cost for the two of them? Around $1500.

Is this pushing the envelope too far? I hope not. It used to be that a lawyer could be disbarred for “appearing to represent both parties”.

I once got a final divorce decree set aside because my colleague, a former WV State Bar President, prepared the answer for the wife. A huge difference was that he really was representing the husband, who paid him, and the wife really did get screwed out of a fair settlement. And the “friendly” appearance meant she believed everything her husband told her the lawyer said, even the stuff he didn’t!

But, a mediator does not represent either party. He/she is devoted to the process, to guiding them towards a fair compromise. The limits of what a mediator can do for them are not fully defined. They need to be explored and, I believe, pushed beyond what we are doing now.

I said in a recent blog article that I am chair of The WV State Bar Board of Governors’ committee on the future of the law, and I recently attended a very “hi-tech”, cutting edge, seminar organized by www.The Lawyerist.com on the future of the law called “TDBLaw” in St. Louis Mo., https://hunterlawfirm.net/future-of-the-law-2016/ .

I also have read the ABA report and the N.C. Law Review Vol. 67 on the major areas of “the future of the law”.

The views expressed here are my personal views and not the those of any bar association or group.

One idea that is gaining ground is “unbundling” of legal services. Here is an example.

What is wrong for a party or parties, if he/she/they are not going to hire a lawyer, to go to a trained mediator? If;

1. They are essentially in agreement? Or,
2. There are clear, even strong, differences, but there is civility?

I say, “Nothing.”, but I have a counter to the implications of that question.

Often, one or both may not be candid about emotional or physical abuse, drug or alcohol abuse, or have a “secret” that one holds over the other.

How can the mediator guarantee that she/he will not end up facilitating an unfair agreement?

Answer? She can’t!

But, in a state with 70% of the litigants unrepresented in family court, with drug abuse rampant, with overworked judges who are lucky to spend 30-60 minutes with the parties before deciding their fate and their children’s, isn’t it better to have them spend a few hours with a trained facilitator?

I say, “Yes!” to that too. I propose that WV mediators and judges push the limits of mediation for un-represented parties.

I also propose that lawyers be permitted to provide as little as an hour of her/his time in meeting with a party in helping them prepare for mediation.

Here are a few caveats:

1. A mediator must be prepared to back off or not prepare documents when he/she “smells a rat”.
2. A mediator must be prepared to announce that the parties really should have lawyers and to explain why.
3. A mediator must get signed waivers if the mediator is going to “ghost write” a pleading to be signed by just one of them. And I am dubious that the mediator can draft the responsive pleading. Personally, I think that should be allowed, assuming both parties agree.
4. A mediator who is going to experiment with this kind of unbundling must have fine “antennae” and excellent mediation skills and family law expertise. It is not a job for sissies.

In short, just as we are not supposed to take on a case we are not trained for, we should not be tackling mediation we are not qualified for.

I am comfortable with the one mediation I have done this way to date, and am posting this with the hope of getting some feedback from colleagues, even judges, or members of the WV State Bar.

I thank my friend Scott for his insightful and constructive comments, and to my wife for listening to them.

This post was written by Burton Hunter