By William D. Gilbride Jr.
Occasionally a Court will send over a civil case for facilitative mediation. The order arrives and names are reviewed for the purposes of conflict checks and disclosures. You may notice that one or more of the parties is not represented by legal counsel. In this article, I briefly review the ground rules for mediators on how to proceed in cases in which there are pro se participants, and share some suggestions for mediators, as well as perspectives based upon my experience in mediating these cases.
Because the ground rules differ depending on the Court in which you are practicing. I will briefly address those rules in both our state and federal courts.
The Michigan State Court Rules have specific provisions involving civil mediation.
For example, MCR 2.412(B)(3) provides, a “mediation party” means a person who or entity that participates in a mediation and whose agreement is necessary to resolve the dispute. This provision makes no reference to the need for legal counsel to represent such a party. In MCR 2.412(B)(4), a “mediation participant” means a mediation party, a nonparty, an attorney for a party, or a mediator who participated in or is present at a mediation”. Again, there is no requirement that a party have counsel to participate in the mediation process; rather, this rule expressly contemplates a non-represented party participant in the mediation process.
In MCR 2.411(C)(2) the mediator shall “meet with counsel and the parties”.
In MCR 2.411(A)(2), mediation “is a process in which a neutral third party facilitates communication between parties, assists in identifying issues, and helps explore solutions to promote a mutually acceptable settlement.” Again, neither of these provisions of the Michigan Court Rules require that legal counsel be present to participate in facilitated mediation. Rule 2.411(C)(2) further provides that: “the mediator shall discuss with the parties and counsel, if any (emphasis added), the facts and issues involved.” This provision suggests that proceeding in mediation without legal counsel is specifically contemplated in the Michigan Court Rules.
In MCR 2.411(G) we are reminded that the State Court Administrator will develop and approve standards of conduct for mediators designed to promote honesty, integrity, and impartiality in providing Court conducted dispute resolution services. Indeed, the Supreme Court Administrative Office has prepared and published court principles for mediators.
In October 2023, the Michigan Supreme Court Office (SCAO) of Dispute Resolution published Mediator Standards of Conduct. Those standards of conduct contain guiding principles for mediators, which certainly contemplate and apply to mediations in which one or more of the parties is not represented by legal counsel. Those core principles include a duty of self-determination, meaning a mediator must base the process on the principle of party self-determination which allows parties to make voluntary and uncoerced decisions about both the process and outcome. Mediators must conduct the process in a manner free from favoritism, bias, or prejudice and the mediator should avoid conflicts of interest or the appearance of a conflict. Of course, mediators are required to assure confidentiality of the process, a topic that should be discussed with the parties at the start of or before the process commences. Among other duties, the Supreme Court Administrative Office mandates that the mediator conduct mediation in a manner that protects the quality of the process ensuring diligence, timeliness, fairness, and mutual respect among all participants. The foregoing obligations are especially important when one or more parties to the proceeding does not have the benefit of legal counsel.
Another obligation addressed in the SCAO report is the mediator’s duty to assure the safety of the mediation. A mediator must make reasonable efforts to administer screening tools to assure the safety of the parties. This duty is especially important when one party is not represented by counsel.
Another core principle addressed by SCAO is the obligation to assure the quality of the process. In this regard, the mediator must facilitate the presence of the appropriate participants, promote their understanding of the mediation process, continuously assess the party’s (ies’) capacity to mediate, and structure the mediation process to enhance the parties’ ability to make informed decisions. These obligations are especially important when one or more of the parties is not represented by counsel. For example, if it appears that a party is unable to understand or communicate well enough in a language in which the mediation will be conducted; or if a party appears to have difficulty comprehending the process, issues or settlement options, the mediator should explore the circumstances and potential accommodations, modifications, or adjustments that would make possible the party’s capacity to comprehend, participate, and exercise self-determination. If a mediator determines that a party does not have the capacity to mediate, even with accommodations, modifications, or adjustments, the mediator should not continue the mediation process.
The mediator also must conduct the mediation with procedural fairness. In addition to the obvious requirements, such as providing the participants with an overview of the mediation process, the mediator must facilitate the acquisition, development and disclosure of information to promote the parties’ self-informed decision-making. This facilitation process may, in some cases, require the suggestion that a pro se litigant obtain legal counsel. The mediator is obliged to suspend or terminate the mediation process if the mediator believes that a participant is unfit or unable to effectively participate in mediation or for other compelling reasons.
Additionally, the SCAO rules specifically instruct the lawyer serving as a mediator to inform unrepresented parties that the mediator is not representing them. When the lawyer serving as a mediator knows or reasonably should know that a party does not understand the role of mediator in the matter, the mediator should explain the difference between the role of a mediator and that of a lawyer in representation of a client.
The rules in the United States District Court are similar but also differ slightly. The authority for mediation of Civil Cases in Federal Court arises out of the Alternative Dispute Resolution Act of 1998 and the Federal Rules of Civil Procedure. The Alternative Dispute Resolution Act of 1998 is the foundational statute that empowers Federal Courts to create alternative dispute resolution programs. The Act mandates that each Federal District shall authorize the use of ADR processes, including mediation in all civil actions. The Act requires District Courts, through local rules, to mandate that litigants consider the use of ADR at an appropriate stage in the litigation. The Act also instructs District Courts to adopt local rules that provide for the confidentiality of the ADR processes.
The Federal Rules of Civil Procedure, Rule 16, grants a District Court the authority to order attorneys and parties to attend a pretrial conference for the purposes that include “facilitating settlement”. Trial judges may rely on this rule to compel mandatory settlement conferences, including sending the parties to mediation. As in the case with the Michigan Court Rules, nothing in the Federal Rules of Civil Procedure or the ADR Act of 1998 requires that a litigant be represented by legal counsel to participate in the facilitative mediation process.
Consistent with the Federal rules, the American Bar Association (“ABA”) Model Rule 4.3 addresses certain specific obligations involving a lawyer dealing with an unrepresented party. Under the Model Rules, a lawyer must take steps to ensure the unrepresented person does not misunderstand the lawyer’s role in the matter. A lawyer may not state or imply that they are neutral or disinterested. They must make it clear that they would represent a client, and that the client’s interest are potentially adverse to those of the unrepresented person. If the lawyer knows or reasonably should know that the unrepresented person misunderstands their role, the lawyer must make reasonable efforts to correct that misunderstanding. There are several other recommendations in Model Rule 4.3 including that a mediator is prohibited from helping the unrepresented person with legal procedures or strategy, as this could be misconstrued as legal advice. A lawyer may, however, negotiate a settlement or transaction with an unrepresented party, so long as it includes informing the unrepresented party of the terms of the proposed agreement in preparing the necessary documents. The neutral mediator has a duty to inform unrepresented parties that they are not being represented by the mediator. The comments to Model Rule 4.3 note that a person with less experience in legal matters is more likely to assume a lawyer is disinterested. A lawyer should be more cautious when dealing with individuals who are unfamiliar with the legal system.
The ABA has adopted some new ethics guidance to lawyers acting as mediators. Rule 2.4 of the ABA Model Rules of Professional Conduct (for lawyers), comparable to MRPC Rule 2.4, places two duties on lawyer-mediators:
- a) A duty to inform unrepresented parties that the lawyer is not representing them; and
- b) A duty to explain the difference between the lawyer’s role as third-party neutral and as a lawyer who represents a client. FO 518 adds, especially with unrepresented parties, lawyer-mediators are “prudent” to “discuss” what these disclosures mean.
Second, FO 518’s meatiest guidance might begin at Section III, “The role of the mediator turns on being credibly neutral.” [emphasis added]. It explains the ethical underpinnings which allow lawyer advocates to “puff” in negotiation but explains that lawyer-mediators do not enjoy this protection. The lawyer-mediator must guard against engaging in exaggeration or concealment to persuade.
Lawyer-mediators are in delicate territory whenever we convey offers in caucus because parties are more likely to trust the lawyer-mediator to “play it straight.”
In Eastern District of Michigan Local Rule 16.3 establishes the framework for our local Courts Alternative Dispute Resolution programs. This rule includes standards for mediation. Local Rule 16.3 indicates that the Court favors ADR methods like mediation in appropriate cases and mandates that all ADR communications are confidential, non-discoverable, and not admissible in court proceedings. The standards for disqualifying a Federal judicial officer also apply to the disqualification of a proposed mediator.
Local Rule 16.4 outlines specifics for facilitative mediation. The process is a nonbinding method where a neutral mediator helps “parties” negotiate a settlement without deciding the case. Again, as with the Michigan State Court Rules, there is nothing in the Eastern District of Michigan Local Rules that requires that a litigant must have legal counsel to participate in the mediation process. Therefore, mediators must apply all other requirements and make special efforts to assure that the non-represented party fully understands the process and is competent to meaningfully participate in it.
There have also been a handful of ethical rulings involving the actions of a mediator. A lawyer who acts as a mediator has specific duties when dealing with unrepresented parties. The ethics opinions emphasize the duty to maintain neutrality and to clarify the lawyer’s limited role to ensure that the unrepresented person makes an informed decision without receiving legal advice from the mediator. See for example RI–256 (2001) maintaining neutrality. The touchstone for a lawyer mediator dealing with unrepresented parties is to preserve neutrality. The lawyer mediator must assure all parties that their function is not to provide advice or counsel, and no party should rely on them to protect their interests. A mediator should not advise unrepresented parties of their legal rights and responsibilities beyond explaining the mediation process itself. A lawyer mediator may suggest that the parties memorialize the tentative agreement in writing, however, the mediator must explicitly ensure unrepresented parties have an opportunity to obtain independent legal counsel to review the agreement before signing it.
RI–256 advises that a lawyer mediator is not prohibited from preparing a document that memorializes the parties’ agreement. However, any activity beyond suggesting the preparation/drafting of the settlement memorandum could be considered legal services. If the lawyer mediator is asked to prepare pleadings to implement the agreement, this falls outside the scope of mediation and acquires the mediator to fulfill other ethical duties. It should be emphasized that the SCAO has rules that say a mediator’s failure to comply with the mandatory provisions of the Michigan Bar can result in removal from the roster of Court-approved mediators.
From this review of the ground rules, there are several basic takeaways.
First, it is permissible in either state or federal court in Michigan to conduct a facilitated mediation of a civil case that involves unrepresented parties.
As the rules in State and Federal Court provide, the lawyer mediator must undertake and perform extra care to assure that the mediation process can be meaningfully conducted if one or more of the parties does not have counsel.
In this regard, it has been my experience that the first level of inquiry is to ascertain the level of competence of the unrepresented party or parties. In some cases, no legal counsel is obtained because of the lack of financial resources. In other cases, it may be that no legal counsel was retained because the participant does not fully appreciate the gravity of the legal forum in which they find themselves. In these situations, the mediator should make an effort to assure that the unrepresented party obtains counsel.
The Michigan Court Rules MCR 2.412(D) proscribe limited circumstances in which a mediator may disclose information to the assigned trial judge. Unfortunately, nothing in MCR 2.412 (D) provides an exception to the duty of confidentiality for the situation in which the mediator concludes that the unrepresented party lacks capacity to exercise self-determination. For this reason, the mediator may need to obtain the permission of all parties to inform the Court that mediation cannot proceed without the unrepresented party having competent counsel, a next friend, or similar legal representative. Absent such an agreement, no express provision allows the mediator to inform the court of concerns about a litigant’s inability to perform the self-determination requirements imposed by the State Bar.
One of the things I have also learned in mediating cases in which one or more parties is not represented counsel, is my process is governed in part by the quality and effectiveness of the other party’s lawyer in the proceeding. In this regard, a lawyer who is representing a party in litigation against a party without counsel is duty bound to assure that the interests of justice are served in the case. All lawyers have that duty, but not all lawyers follow it to the same degree. In my experience, one of the important roles for the mediator in such a situation is to ascertain whether the counsel involved in the case is meeting his or her ethical obligations to comply with the steps necessary to assure a safe and meaningful mediation process with the unrepresented party or parties.
As the foregoing indicates, a number of ground rules apply if a party appears in your office for mediation without counsel present. Mediators should give special attention to the needs of the unrepresented party and review the above criteria to assure that the mediation process complies with the court rules, local rules, and ethical standards imposed on lawyers practicing law in the State of Michigan.
William D. Gilbride Jr.
Within the legal community, Bill is active in state and local bar association activities, including his service as past Chairman of the State Bar of Michigan’s ADR Section Council and as a fellow with both the Michigan State Bar Foundation and the Detroit Metropolitan Bar Foundation. He has earned the respect of his peers and colleagues, as evidenced by his accolades as a Michigan Super Lawyer, a dBusiness Magazine Top Lawyer, a Law Bulletin Publishing Leading Lawyer, and an AV Preeminent Lawyer rating from Martindale-Hubbell. He was also inducted into the American Board of Trial Advocates, an invitation-only group of accomplished trial lawyers who demonstrate high personal character and honorable reputation. Bill is the 2020 recipient of the George M. Bashara Award from the State Bar ADR Council, the highest honor awarded by the Section. In November 2020, Bill did join the American Arbitration Association panel for commercial and complex cases. Bill remains active as a Business Court case evaluator for Wayne County.
Bill is a graduate of the University of Detroit School of Law and the
University of Michigan.
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