…Because 'Yes' Actually Means 'No': A Personalized Prescriptive to Reactualize Informed Consent in Dispute Resolution
38 Pages Posted: 10 Apr 2017 Last revised: 23 Aug 2017
Date Written: May 30, 2017
Too often, litigants in civil disputes are dispute resolution illiterate. 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 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. If left unchecked, such dispute resolution literacy threatens the integrity of the dispute resolution profession, a profession who takes pride in touting informed consent as a foundational tenet. Moreover, this illiteracy bars litigants from achieving the personal justice they seek.
Although lawyers, courts, ADR providers and neutrals might provide litigants with 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. The professional information provided is often a generic recitation about the structure and procedures used within a specific dispute resolution procedure. Furthermore, it may be presented in a way that is incomprehensible to the litigant’s way of processing information and making decisions. Conspicuously absent from this one-size-fits-all approach to informed consent is a more customized way to share information about the dispute resolution procedures that is tailored to the particular individual’s needs, values, and decision-making process.
Despite this inadequate information, however, many litigants still give a reflexive assent to the generic recitation of information explaining dispute resolution procedures, believing that they have no real choice. Some litigants may not even realize that they have the autonomy to choose as part of their right to make decisions about their case. Still, other litigants may be hesitant to ask for additional information, not wanting to be viewed as “stupid.” Yet others may not fathom what information they might want or need to know in order to make an informed choice. Thus, when litigants agree to participate in a dispute resolution procedure, their “yes” may mean “no.”
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
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