38 Pages Posted: 10 Apr 2017
Date Written: April 10, 2017
Even though informed consent is a fundamental value in dispute resolution, too often individuals opting to participate in a dispute resolution procedure are neither informed nor give their meaningful consent. Thus, when litigants in a civil dispute are asked by their lawyers and their ADR professionals to decide whether or not to participate in a dispute resolution procedure, litigants may agree to participate without fully understanding the meaning of their choice. Although lawyers, courts, ADR providers and neutrals may provide litigants with information about dispute resolution procedures that these professionals assume litigants need to make an informed decision and give consent give their informed consent, litigants may find this information inadequate to support their personal decision making process.
This paper examines the current limitations of achieving a client’s meaningful informed consent when deciding whether to participate in a dispute resolution procedure and then recommends a more personalized approach to achieving meaningful informed consent. This paper culls lessons from both the research on dispute resolution literacy and the innovations in the health care industry regarding informed consent and then refocuses informed consent efforts back to what informed consent is about, the client. The three-part prescriptive includes: information gathering about what individual consumers of dispute resolutions actually want to know; tailoring that information to fit the client’s informational, decision-making and personal preferences; expanding the professional-client conversation about informed consent.
Keywords: Informed consent, dispute resolution procedures, Ethics, Client centered lawyering, Personalized, decision making
Suggested Citation: Suggested Citation
Greenberg, Elayne E., …Because 'Yes' Actually Means 'No': A Personalized Prescriptive to Reactualize Informed Consent in Dispute Resolution (April 10, 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