Document Type

Article

Publication Title

Notre Dame Law Review

Volume

74

Publication Date

1998

Keywords

mediation, informed consent, lawyerly conduct

Abstract

Informed consent has a central role to play in mediation. Without it, mediation's promises of autonomy and self-determination are empty. This Article has given the theoretical and policy justifications for a reform of mediation practice that honors the principle of informed consent. I have argued for a contextualized approach that takes into account mediation's location, the voluntariness of the parties' consent, and their representational status. This kind of analysis will lead to a more informed practice of mediation decisionmaking than exists currently and provide a perspective that can more prudently guide a mediator's conduct. The proposed approach promotes greater fairness in mediation, particularly for parties who do not have lawyers. And fairness is what matters at the end of the day.

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