by: Michael T. Colatrella Jr.
An issue of increasing importance to both mediation policy and practice is the extent of a mediator’s responsibility to ensure that mediation participants who are not represented by legal counsel make informed settlement choices. Mediators have certain duties to promote informed decision making throughout the mediation process, but the nature of these duties and how they should be discharged is a topic of debate. Mediator ethical codes provide minimal guidance on the issue, leaving unacceptable ambiguity as to the role the mediator plays in a participant’s informed consent. “Informed consent” is the legal term that describes the circumstances under which a person knowingly and voluntarily agrees to a course of action recommended by a professional, like a physician or lawyer. This Article addresses whether and to what degree the doctrine of informed consent should impose a duty on the mediator to ensure that an unrepresented party to a mediation “truly understands” the terms, benefits and risks of a contemplated settlement. Participant informed consent in mediation is a timely and important issue despite that surprisingly little has been written on the topic. Increasingly, people are voluntarily turning to mediation to resolve their disputes and are consequently impacted by mediation policy. Many others are finding themselves forced involuntarily into mediation, either by court order or economic constraints that make litigation impractical or cost prohibitive.