When 'Yes' May Actually Mean 'No': Rethinking Informed Consent to ADR Processes
NYSBA New York Dispute Resolution Lawyer, Spring 2015, Vol. 8, No. 1
5 Pages Posted: 28 Jul 2015 Last revised: 4 Sep 2015
Date Written: July 27, 2015
It is time for us to rethink how to achieve meaningful party consent to ADR processes such as mediation and arbitration. I, along with my colleagues Professors Jeff Sovern, Paul F. Kirgis and Yuxiang Liu recently contributed to the growing body of research finding that a party’s consent to use an ADR process rather than utilizing a court to resolve their dispute is too often neither informed nor consensual. In our empirical study “‘Whimsy Little Contracts’ With Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements,” we found a paucity of consumer awareness and understanding of arbitration clauses in pre-dispute consumer contracts. Although our research was about the degree of a party’s informed consent to arbitration agreements in consumer contracts I believe the findings have broader applicability to our understanding of a party’s informed consent beyond consumer contracts and to ADR processes in general. This research challenges the long-held assumptions and ongoing practices of many ADR professionals, including myself, who believe that a party’s decision to participate in dispute resolution should be a voluntary and informed decision. In this column, I will extrapolate the lessons learned from this research and question how we might make informed consent a more meaningful concept when using and conducting such ADR processes.
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