It is possible to navigate these legal minefields (interactions with self-representing parties) effectively and successfully by educating your clients about the importance of achieving results that will survive legal challenges and by working cooperatively with them to that end. In addition, it is very crucial that your clients understand, with your assistance, that they are best served if, at the conclusion of the legal proceedings or alternative dispute resolution process, the results achieved, are found to be fair, equitable, reasonable, and not unconscionable; devoid of duress, coercion, fraud, and overreach; and therefore, enforceable.
Investing a reasonable amount of time to do the necessary groundwork before initiating any interaction with self-representing parties can make a significant difference in the outcome and the overall experience for your clients, self-representing parties, their families, presiding judges, you, and the legal community as a whole. It is imperative to conduct thorough conflicts check to ensure there is none. Furthermore, it is important to take appropriate steps to avoid any appearance of conflict of interest, from the beginning to the resolution of the matter through an alternative dispute resolution process or litigation.
It is not at all unusual for parties who are self-representing at the initial phase of any dispute resolution process to hire counsel at any phase, thereafter. Therefore, it is very crucial that you cultivate the habit of requesting, before each interaction or communication, that self-representing parties inform you as soon as they hire counsel and that they provide you their counsel’s name(s) and contact information, so that you can start communicating with them through their counsel, instead.
Cultivate and maintain a positive, professional relationship with your clients and earn their trust early so you can gather comprehensive information from them regarding the parties’ respective ages, their history as it pertains to marriages, divorces, children, conflict resolution styles, domestic violence, drug abuse, and English language proficiency among many other aspects.
Experience indicates that some of your clients’ might not be reliable reporters, or their perspectives might differ significantly from those of their self-representing opponents. Therefore, it is necessary to require your clients to provide to you as much documentation as possible well in advance of discovery (whether the dispute is being litigated or not). In addition, due diligence dictates conducting independent searches on accessible judicial information systems and other publicly available sources for information that could corroborate or call into question any aspect of your clients’ version of the facts.
Though not exhaustive, each of the factors mentioned above will enable you to protect the process from derailment—by identifying, addressing, resolving potential problems, and if necessary, abandoning dispute resolution processes that offer inadequate or no procedural and substantive due process to self-representing parties.
For instance, incapacity or diminished capacity due to age, addiction, or mental or emotional illness will likely render negotiated agreements void ab initio, regardless of whether the party who lacks capacity is self-representing or not. In such circumstances, the option that is most likely to offer maximum procedural and substantive due process is litigation.
In instances where you have actual or constructive knowledge of power imbalance or lop-sided dynamics between your clients and self-representing parties due to factors including, but not limited to, the parties’ domestic violence history, financial means, or education levels, agreements resulting from alternative dispute processes such as negotiation and mediation could be voidable, if found to be unconscionable or to have been procured too hastily, under duress, or by fraud, coercion, or undue influence, without full, fair and frank disclosure (in writing) of all pertinent information (including assets and debts).
It is of paramount importance that you model for your clients and self-representing parties, behavior that you would like to see. This requires you to be respectful of and treat your clients and self-representing parties with respect, dignity, patience, understanding, fairness, and firmness. Tone matters immensely. Your tone can make a significant difference in terms of whether self-representing parties feel respected or not, intimidated or not, coerced or not, and heard or not. Tone can also make a big difference in terms of escalating or de-escalating disputes. It matters even more when your clients and their self-representing opponents have children in common. Therefore, it is very important that you communicate with self-representing parties respectfully, civilly, clearly, and preferably, in writing by prepaid U.S. certified mail, restricted delivery, and return receipt requested, or by means of other delivery options approved by your jurisdiction. In addition, email electronic (backup) copies of the same documents to self-representing parties, whenever it is possible to do so.
Limit telephonic and text message communication with self-representing parties to the barest minimum and keep in mind that most, if not all, of your communication with self-representing parties could be discoverable, in the event they challenge any aspect of your interactions with them. Furthermore, avoid social media interactions with your clients, self-representing parties and anyone else who is involved in an ongoing matter in any capacity.
Remember every time you communicate with self-representing parties to inform them in clear, unambiguous language that you do not represent them, will not give them any legal advice, and that they may seek independent legal representation.
It is equally important that you educate your clients on the importance of ensuring that most, if not all, of your communication with self-representing parties be conveyed in the language or medium that is most accessible to them. It might entail you explaining to your clients that it is relatively more cost effective to incur the costs associated with accommodating the needs of self-representing parties with special needs than to risk reversals on appeal or invalidation of results achieved, otherwise. To that end, it is imperative that you request interpretation and translation services when dealing with self-representing parties, who do not have English language proficiency.
Similarly, it is crucial to request appropriate accommodations including, but not limited to, sign language and braille services, if you have actual or constructive knowledge of a self-representing party’s disability.
Remember to always keep the end in mind. The outcome must survive a legal challenge for the time, expenses, and other resources invested in the process to be worthwhile. Your effective and successful interactions with self-representing parties will redound enormous benefits to your clients. Besides, you will likely save them time and money, model appropriate dispute resolution style for them, help them to limit their children’s exposure to trauma, and help them move forward as restructured or reconstituted families, if applicable.
In addition, you will likely lighten the burden that presiding judges, court staff, other professionals, and third parties might have to shoulder, otherwise. Furthermore, you demonstrate the nobility of the legal profession while enhancing your professional reputation and potential for growing your practice.
