Professor Julie Macfarlane issued a new post to the National Self-Represented Litigants Project Blog today. We highly recommend that both mediators and lawyers read it and consider how they can make the mediation process work better for self-represented litigants.
It used to be that, in motor vehicle personal injury cases in BC, ICBC would refuse to mediate with a self-represented litigant. The general wisdom was that this was much too risky and could result in a significant waste of resources if the plaintiff later experienced “settler’s remorse” and wanted to set the agreement aside. In that milieu the access to justice consequences were not considered to be too significant since most personal injury claimants could retain a lawyer using a contingency fee arrangement. Since then, however, claims in the small claims range ($25,000 or less) became less attractive financially for plaintiff counsel so the problem remains.
Contingency fee agreements are not common outside of the personal injury / insurance milieu.
As Julie points out, “the world would be an easier place for other justice system participants if every SRL could have a lawyer. However, this is not about to happen.” Yes there is risk in mediating with an SRL but there is also significant risk and damage that results from an unwillingness to offer this tool to parties in dispute. More needs to be done to make mediation accessible to SRLs and mediators can help in a number of ways including:
- highlighting the importance of the pre-mediation process as an educational as well as a preparation tool
- structuring the mediation as a series of shorter meetings rather than one exhausting marathon session
- ensuring that the SRL has access to legal information AND information about where to obtain legal advice if needed
- having a list of lawyers who are willing and able to provide unbundled legal advice and coaching to SRLs before, during and after the mediation process
- providing the SRL with other resources to support them including paralegal help, assistance with form completion etc.
Professor Macfarlane provides a more complete list in the blog post.
A callout to mediators: what are some of the approaches that you use to support SRLs in the mediation process AND to get the word out about mediation in this context?
We will collect the comments and publish another post in a few weeks.
Kari D. Boyle, Executive Director, Mediate BC Society