The Courts are reporting an increase in people representing themselves and dispensing with, or not instructing a lawyer, for a multiplicity of reasons. The Courts are encouraging more accessibility and discouraging use of lawyers in order to save costs. (Whiplash reforms, court modernisation/reform, online court, family Courts, to name a few examples)
What happens if you are dealing with a matter where, as is increasingly the case, the other party is not represented? In this article, I will try to give some useful hints about dealing with such cases.
CEDR recently published an article about mediation advocates in the context of preparing for a mediation. It was all very well, but not practical for cases involving litigants in person. It was very much geared towards both parties being represented by lawyers, for example recommending speaking to the lawyer for the other party to narrow the issues before a mediation. Gobbledegook to you and me. Having a lawyer is a luxury that many simply cannot afford.
Mediation can be a good way to deal with litigants in person because it gives represented parties the opportunity to explain the case to the other unrepresented party, face to face. It can save a lot of costs as dealing with a litigant in person can involve more time and cost than other cases in which lawyers are involved.
A litigant in person may not be able to afford to pay for the mediation. In some cases it may be worthwhile paying for the whole of the mediation of that encourages the non represented litigant to attend. It can be more cost effective than continuing to a trial and incurring more costs which may never be recovered even if successful.
When preparing for the mediation, bear in mind that a litigant in person may not be able to produce a position statement or bundle of key documents. It often falls on the represented party to provide the mediator with the documents.
Until the mediation, the unrepresented party may not have had any legal advice and may be someone who may not fully understand the implications of proceeding to trial or may not understand the underlying legal principles.
Sometimes, for example, a litigant in person may find it difficult to understand principles of causation or loss. There is no point producing densely worded complex case law authorities.
Bear in mind that reasonable adjustments need to be made if the other party is disabled. So, the mediator may need to ensure that the venue is accessible. Consider whether whether litigants have mental health or capacity issues. Take into account cultural and language comprehension issues. Consider whether an interpreter is needed or a mediator with specific language or cultural skills. For example, we have been asked previously to find a mandarin speaking mediator, which we were able to do.
A represented party can use the mediator to channel information to the unrepresented party in an understandable trusted manner. An unrepresented party will place more trust and reliance upon the mediator than a represented party. A mediator needs to tread a careful line between helping the litigant understand the case and giving advice, which he or she should not be doing.
It may be the case that an unrepresented litigant is looking for an apology or self justification. They may not want to admit to any failings. They may want their “day in court” or monetary compensation. It may often be a “matter of principle.” A mediation can give someone the opportunity to be heard and to express emotions which would not be possible in a Court hearing. The opening meeting can be a great opportunity for parties to express themselves and get things off their chest. A legal case is much more personal to an individual than a lawyer. It can be difficult to look at the case dispassionately.
There can be strength in simplicity. Keep it simple and be aware of preconceptions and unconscious bias. A litigant may be different in person to how they come across on paper. They may be looking for a different outcome than you are expecting.
The equal treatment benchbook is a useful guide to dealing with litigants in person and how to communicate with non lawyers.
As with a judge or advocate, a mediator will need to be sensitive to such issues and may try to level the playing field without of course straying into partiality. Nonetheless in some ways the mediator is acting as a mouthpiece or advocate for each party in the separate private meetings.
The Law Society has also produced a useful guide to dealing with litigants in person.
https://www.lawsociety.org.uk/news/documents/litigants-in-person-guidelines-for-lawyers-june-2015/
If you are going to make an offer or the other party makes an offer, bear in mind that for a litigant in person, they may be expecting the represented party to make the first move. They may not negotiate in the same way as lawyers often do, incrementally increasing or decreasing the offer or “horse trading.”
Note that an unrepresented party may have more limited funds than your client. They may be shocked to hear what level of costs are in a case. It is not uncommon for lawyers to charge £250 plus VAT per hour, but this can be incomprehensible to many people. I have come across small claims where legal costs incurred have exceeded £30,000.
If you settle your case with an unrepresented party make sure that they understand what they are signing up to and that it is binding. The terms of any court order should be kept simple and avoid legal jargon like “Tomlin order.” The last thing you will want is the matter resurrecting after the mediation.
These are just some ideas. There are no hard and fast rules. We do have experience of dealing with cases like this at ProMediate so consider instructing one of our mediators to conduct the mediation. www.promediate.co.uk