... Because "Yes" Actually Means "No": A Personalized Prescriptive to Reactualize Informed Consent in Dispute Resolution
Marquette Law Review
This paper proposes a radical departure from the status quo approach to securing a client’s informed consent about settlement options and refocuses informed consent practice back to what informed consent is about, the client. As it exists today, the status quo approach to securing a client’s informed consent about whether or not to use an alternative dispute resolution procedure to resolve the client’s case is inadequate. It thwarts a client’s right to exercise party self- determination and stymies a client’s ability to make informed justice choices. Lawyers, courts, ADR providers and neutrals routinely provide litigants with generic information about the structure and procedures of dispute resolution procedures that these professionals assume litigants need to make an informed decision about whether or not to litigate or to use alternative choices. Litigants, however, might find this information inadequate to support their personal decision making process. Furthermore, litigants often find this information 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.” Still, 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 or opt out of a dispute resolution procedure, their “yes” may mean “no.”
The proposal culls from both the research on dispute resolution literacy and the innovations in the health care industry regarding informed consent and recommends a three part prescriptive. First, a database will be created that contains the universe of information that individual consumers of dispute resolution actually want to know when choosing their justice option. Second, from the broader database, each client will be able to develop his or her own customized personal profile of informational needs. The personal profile will titrate the information from the broader database and provide the client with information tailored to each client’s informational, decision-making and personal preferences. Third, lawyers and dispute resolution professionals will be educated about how to use the client’s personal profile to tailor the professional-client conversation to include relevant information to the client about the dispute resolution options being considered. The goal is to fortify clients with the information about dispute resolution procedures commensurate with the client’s informational needs, decision making process and personal values so that the client will finally be able to give their meaningful informed consent to their justice option choice.
Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss1/8/