…Because 'Yes' Actually Means 'No': A Personalized Prescriptive to Reactualize Informed Consent in Dispute Resolution

38 Pages Posted: 10 Apr 2017 Last revised: 8 Jun 2017

Elayne E. Greenberg

St. John's University School of Law

Date Written: May 30, 2017

Abstract

Informed consent is a foundational value of dispute resolution. However, too often, litigants in civil disputes are dispute resolution illiterate and unable to give their meaningful informed consent to participate in or opt out of a given dispute resolution procedure. Many litigants do not know that dispute resolution procedures other than litigation exist; many do not understand the fundamental workings of how various procedures operate to resolve disputes; and many do not appreciate the strategic application of these procedures to their case.

A troubling consequence of this dispute resolution illiteracy is that when litigants have the opportunity to use a dispute resolution procedure to help resolve their dispute, they do not have the context to understand the import of their dispute resolution procedure choices as it applies to them and their case nor the ability to give their meaningful informed consent. Moreover, when litigants are dispute resolution illiterate about the variants of justice each dispute resolution procedure potentially offers, they are unable to access the justice they seek. Although lawyers, courts, ADR providers and neutrals might provide litigants with generic information about dispute resolution procedures that these professionals assume litigants need to make an informed decision and give consent, litigants might find this information inadequate to support their personal decision making process. Despite this inadequate information, many litigants still give a reflexive assent to the generic recitation of information explaining dispute resolution procedures, believing that they have no real choice.

This paper challenges the status quo practice of informed consent. In its place, the proposal recommends synchronizing the dispute resolution values regarding informed consent with dispute resolution practice by adopting a more personalized approach to help achieve meaningful informed consent. This proposal culls from both the research on dispute resolution literacy and the innovations in the health care industry regarding informed consent, and refocuses informed consent practice back to what informed consent is about, the client. The three part prescriptive includes: creating a database of information that individual consumers of dispute resolution actually want to know; developing individual personal profiles from the broader database that tailors the collected information to fit the client’s informational, decision-making and personal preferences; using the personal profile developed to expand the professional-client conversation about dispute resolution procedures so that the individual is able to give their meaningful informed consent.

Keywords: Informed consent, dispute resolution procedures, Ethics, Client centered lawyering, Personalized, decision making

Suggested Citation

Greenberg, Elayne E., …Because 'Yes' Actually Means 'No': A Personalized Prescriptive to Reactualize Informed Consent in Dispute Resolution (May 30, 2017). St. John's Legal Studies Research Paper No. 17-0003. Available at SSRN: https://ssrn.com/abstract=2950020 or http://dx.doi.org/10.2139/ssrn.2950020

Elayne E. Greenberg (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Queens, NY 11439
United States

HOME PAGE: http://www.stjohns.edu/academics/graduate/law/academics/centers/careycenter

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