Mediating Pro Se Prisoner Civil Rights Cases: Mediator Strategy
by Earlene R. Baggett-Hayes
Attorney, Mediator, Arbitrator
It is often said that effective mediators can mediate cases ranging from day-care center disputes to foreign affairs conflicts. Somewhere within that continuum of cases are conflicts brought by prisoners against prisons and other related entities. Oftentimes, the prisoners are representing themselves in these cases.
The United States District Court for Eastern Michigan is currently conducting an Early Mediation Pro Se Prisoner Civil Rights Program. This program is intended to provide for the speedy resolution of legal disputes that exist between prisoners and state corrections officials. The prisoner, acting on their own behalf in the lawsuit, and the state corrections officials, through representation by the Attorney General’s Office, can curtail expensive and protracted litigation by using this process. The early mediation program provides a voice for both sides by allowing for a candid and informal discussion of concerns, and an extensive review and consideration of settlement proposals and resolution offers. It also encourages both sides to make a good faith effort to reach a resolution after reviewing the facts and the law.
Pro se prisoner civil rights cases, however, present challenges. Whether truth or fiction, the prisoners’ allegations may range from being absolutely legitimate, to intentionally vindictive. Their pursuits may be described as, “They owe me…They did me wrong…I have nothing to lose…I’m getting back at them…I have nothing but time on my hands…or, It gives me time out of my cell.” Many prisoner’s Section 1983 complaints can be hundreds of pages long. Likewise, the institution may retort with, “We have done nothing wrong…We must preserve institutional peace…We will not establish precedent…We will not encourage additional cases…This case will be thrown out.” The prison’s answers to the complaints may be equally as burdensome.
This article suggests a few strategies that may assist the mediator in helping the parties move toward resolution at an early stage. The mediator should strive to establish trust early on and throughout the process; conduct effective pre-mediation calls; employ a facilitative mediation style, and generate a robust discussion of available options for resolution.
Based on the perceived view of the parties that the other side has not been fair, honest, or reasonable, it is crucial for the mediator to establish trust early in the process. This includes trust in the mediator, as well as trust in the process. By doing so, the mediator may open doors for discussion that have not been previously available. This process begins with the mediator’s initial contact(s) during the pre-mediation calls.
During the confidential, independent, pre-mediation calls with each side, the mediator should provide a brief introduction and an overview of how the mediation process works. It is important to provide encouragement and allow the party to share information at that time and to confirm that the party will have the opportunity to share information and ask questions during the mediation. It is also helpful to assure the party that the mediator has read the submissions and to ask a few questions to confirm the mediator’s familiarity with the case. The pre-mediation call also provides an opportunity for the mediator to ask the party if there is anything particular about the case the party feels would be helpful in resolving the matter.
Prior to concluding the pre-mediation conference call, the mediator should ask if the party has any questions, and respond accordingly.
Trust in the process should extend throughout the mediation. The prisoner is video-conferenced into the mediation room. To assure the prisoner that the process is fluid, it may be appropriate for the mediator to speak privately with the prisoner immediately prior to the start of the mediation. This provides an opportunity for the mediator to check for questions, let the prisoner know who will be in the mediation room, and establish a comfortable environment. If the prisoner is unexpectedly conferenced into a room with representatives of the prison, the Office of Attorney General, and other defendants, the element of surprise may severely undermine any trust that has been previously established by the mediator. The mediator should also meet separately with the defense to conduct similar discussions.
The infusion and retention of trust in the mediation of pro se prisoner civil rights cases is typically protected when the mediator utilizes a facilitative, rather than evaluative, style. The facilitative method encourages the parties, through carefully-crafted mediator inquiries, to reach their own decisions through self- determination. By way of example, instead of the mediator telling a prisoner how a pre-existing leg injury probably affected the prisoner’s recent fall, the mediator should ask appropriate questions to encourage the prisoner to talk about details of the pre-existing leg injury, as well as the recent injury. While it may be appropriate at times for the mediator to become more evaluative, clearly communicating, individually or jointly, the mediator’s view of the likelihood of success, these opportunities must be measured and well-timed during the process.
Typically, in pro se prisoner civil rights cases, the prisoners allege violations of First Amendment rights concerning either their exercise of religion, or access to libraries; Eighth Amendment rights regarding deliberate indifference to medical treatment, harmful conditions of confinement, retaliation, excessive force, lack of equal protection, or cruel and unusual punishment; and Fourteenth Amendment rights concerning violations of due process and retaliation.
The mediator techniques of encouraging parties to create reasonable and practical options to resolve these claims are paramount to reaching a resolution. While both sides enter the mediation with specific expectations and ideas regarding what they will, or will not, offer or accept, the mediator’s role is to encourage the parties to focus on their underlying needs and interests and move them beyond their initial positions.
In a recent case, the prisoner contended that he was entitled to a large sum of money due to his failure to receive adequate medical attention. The prison’s position was the medical care was adequate and no payment would be made. After the mediation process allowed for an exhaustive discussion of the ongoing dietary needs of the prisoner, and the revelation that the prisoner was scheduled for a release within a relatively brief period of time, the parties’ resolution discussion evolved around a modified dietary plan and a record modification after an agreed-upon period of time.
For mediators, encouraging the parties to brainstorm and create options can be a challenge. The mediator must listen carefully to the parties as they move from positions to interests and needs. The prisoner’s needs may be dietary, require access to facilities or treatment, relate to a written record, or evolve around coaching for a specific employee. While at the outset, the prison makes it clear that certain requests are not to be considered, e.g., parole, pardons, etc., other options for consideration may bring the parties closer to resolution. The mediator can assist in developing a grouping, or list, or particular options by relying on information communicated by parties and extrapolating ideas based on their recitation of needs and interests.
The Early Mediation Pro Se Prisoner Civil Rights Program has the potential to allow parties to resolve numerous issues within the prison system. The mediator’s imbuing of trust and meaningful communications during the mediation process will facilitate reaching positive outcomes.