Mediation: Help for Self-represented parties

The unfortunate reality is that unrepresented (self-represented) parties do not do well in the Canadian legal system. The Canadian courts are not designed for a DIY approach. Legal procedures are very complex and were never meant to accommodate non-experts.

A lot could be said about the wider societal trends and economic realities that compel so many people to show up in court without legal assistance. According to Statistics Canada, the number of unrepresented parties in Canada’s legal system is increasing. In Toronto close to 80% of litigants in family court are not represented by a lawyer, and in civil court (including personal injury, employment, and condominium matters), the number is 30-40%.

Dr. Julie MacFarlane leads the National Self-Represented Litigants Project (NSRLP) and has studied the issue extensively. She has found that the biggest challenge facing non-represented parties is unfamiliarity with legal procedure. This, combined with outsize expectations, leads parties who do not have the benefit of legal counsel to pursue their claims when they would likely to do better to settle them. I see both of these trends when I work with unrepresented parties. Many treat the mediation session as a hurdle to be mounted before they can appear before a judge. Unfortunately, they do not realize that mediation should be treated as an end in itself and may be their best chance for some kind of positive resolution.

Every year, some of those 30-40% of unrepresented litigants arrive for a mediation session with me. Sometimes they are plaintiffs in claims where the defendant is an insurance company. Sometimes they are condominium owners who are brought to mediation by their neighbours or by the condominium corporation. Almost without exception, the other party has legal counsel. I can’t speak for family mediators since I do not practice in that area. Here are some things that I would like unrepresented parties in civil mediation to know:

  1. Some people prepare for mediation and court by doing research in the form of reading case law. This is admirable, to be sure. However the danger is that, without a legal education, they do not understand the wider legal context in which the cases have been decided. Without this wider context it is very easy to misinterpret individual decisions. It can also be challenging to see the relevance of particular cases to your own situation.
  2. Even if a non-lawyer masters a specific area of law, he or she usually misses something that is equally important: an understanding of how lawyers think. Lawyers are advocates for their clients and their main concern is what is best for their client. Their role is not to ensure a fair outcome. (It is also not the mediator’s role to ensure a fair outcome. However a mediator does have to convene a fair process.)
  3. In order to give the best advice to their clients, lawyers consider what would happen if the case went to court. They weigh many factors, including damages and liability. “Damages” means the loss that the plaintiff has suffered, whether this is bodily harm (such as a broken leg caused by a car accident) or monetary loss (say, if a contract is not fulfilled.) “Liability” means (roughly) who is to blame, and to what degree. To convince a lawyer that you have a good case, you have to address both factors.
  4. The more evidence you can provide of damages and liability, the more likely you will be to convince a lawyer that her client should settle your claim. (If you a defendant, then the reverse applies: you need to provide evidence that you are not responsible for the other side’s damages.)
  5. If a lawyer believes that your case is weak, she will advise her client not to settle. If a lawyer does advise her client to make a monetary offer, it is because she believes that her client has some “exposure” or risk. This does not necessarily mean that she believes you could prevail in court. It might be enough that she believes you could get her client entangled in a court case.
  6. The mediator will ask both sides to provide a written document (a “brief”) outlining their position, and for each side to exchange this document with the other side. (I ask to receive this at least one week before the date of mediation.) When you receive the other side’s brief, study it carefully, as it will tell you where the other side perceives the weaknesses in your position.
  7. If the mediation fails, the next step is not necessarily a trial. Rather, it is likely that the represented party will move for a summary judgement. This means that the other party will ask a judge to rule that the claim has no reasonable chance of success and should be dismissed. According to Dr. MacFarlane’s research, a staggering 95% of these motions brought against unrepresented parties are successful.

To sum up: Mediation might be your best opportunity to settle your claim, so prepare. Bring your best evidence and arguments. Treat the mediation session as an end in itself and a real chance to resolve the dispute.

This may also be relevant: I’m in mediation. Why do I need a lawyer?