Informed Consent in Mediation: A Guiding Principle for Truly Educated Decisionmaking
66 Pages Posted: 20 May 2016
Date Written: 1999
This Article seeks to promote critical, reflective examination of the principle of informed consent in mediation and to give content to that principle. It argues that a theory of informed consent for mediation should focus on the parties' acts of decisionmaking throughout the mediation process. Parties, particularly those who are unrepresented by lawyers, need to understand what it means to participate voluntarily in mediation, how the consent process operates, and what it means to reach an agreement. They need to understand that a decision to settle through mediation may result in a waiver of legal rights and remedies. More attention must be paid to the disparate circumstances, locations, and human conditions under which mediation occurs. Parties come to mediation in courts, public agencies, community dispute centers, and private providers' offices with varying degrees of voluntariness and legal representation. The range of mediation consumers extends from sophisticated, repeat players to illiterate, unrepresented parties. A sustained informed consent theory in mediation should differentiate disclosure and consent requirements based on these disparate factors and human conditions. This requires an understanding, not just of the substance of the principle of informed consent, but of the practices that foster it in all the settings in which mediation occurs.
Thus, this Article proposes a contextualized approach to informed consent with a sliding-scale model of disclosures. The amount and kind of information disclosed depends upon the location of the mediation, the voluntariness of the parties' consent, and the parties' representational status. Unrepresented parties need more disclosure than parties who have lawyers and when courts require unrepresented parties to mediate, fairness demands that they have a basic knowledge of their legal rights.
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