McGeorge Law Professor Michael Colatrella has an interesting article entitled Informed Consent in Mediation: Promoting Pro Se Parties’ Informed Settlement Choice While Honoring the Mediator's Ethical Duties.
This article explores the question of how mediators can promote informed settlement choices by pro se litigants while still abiding by a mediator’s ethical duties of impartiality and party self-determination. “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. The mediation scholarship distinguishes between two kinds of informed consent: “participation” consent and “outcome” consent. A party’s decision to take part in mediation is participation consent. “Outcome consent” addresses the degree to which a party understands the consequences of the settlement agreement reached during the mediation process. Mediator ethical codes provide minimal guidance on the issue, leaving unacceptable ambiguity as to the role the mediator plays in a participant’s informed participation and outcome consent. Moreover, some mediation scholars imprudently argue that when a pro se participant is ordered by the court to attend mediation, the mediator must obtain informed outcome consent — even if this means acting impartiality, as that duty is presently defined. This article concludes that the law should impose a duty on mediators of informed participation consent, but not informed outcome consent. Requiring informed participation consent is consistent with the mediator’s established role of educating parties about the mediation process and empowering them to fully and knowingly engage in that process. Imposing the duty of informed outcome consent on the mediator, however, would create a significant conflict with the mediator’s ethical obligation of impartiality and undermine the efficacy of mediation.