Once again, I am teaching mediation ethics to graduate students at the Gould School of Law at the University of Southern California. Over the last couple of weeks, we have been focusing on “informed consent.” Standard I of the Model Standards of Conduct for Mediators covers self-determination and mandates that mediators conduct mediations on the basis of self determination which is defined as giving each party the opportunity to make a voluntary, uncoerced, free and informed choice both as to process and outcome.
In defining “informed consent” for my class, I usually refer to the California Rules of Professional Conduct Rule 1.01(e):
“Informed consent” means a person’s* agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably* foreseeable adverse consequences of the proposed course of conduct.
I mention this because I just conducted what turned out to be part 1 of a mediation that ended due to a lack of informed consent. It was a landlord tenant matter in which the tenant was suing for, among other things, unlawful eviction. The tenant alleged that the landlord acted so improperly as to cause her to suffer emotional distress requiring medical treatment including hospitalization.
The negotiations were going along smoothly, and it seemed that the parties would settle after doing the requisite rounds of the “negotiation dance.” But then, the tenant’s counsel asked if the landlord would be willing to do a “conditional settlement “ because it occurred to counsel that she did not have the medical bills for the treatment and hospitalization of her client and obviously, did not want to enter into a settlement that was not adequate to cover all expenses. I suggested that it might be better to simply terminate the mediation to allow them to obtain the information but that we should speak with defense counsel about it.
In speaking with defense counsel, she agreed that it would be better to postpone the mediation until the information is obtained and then resume the mediation.
So, we ended for the day with the hope that the information would be obtained very soon, and the mediation would resume soon thereafter.
As I tell my students, “Self-determination” is tricky in that some folks want to decide based on every scrap of information available while others want to “wing it” and simply decide immediately without the benefit of knowing more.
Here, the plaintiff and her counsel chose the middle ground: they wanted to be “reasonably” informed or at least knowledgeable of all the expenses involved before making the decision whether to settle and if so, for how much. “Informed consent” was definitely involved here.
The moral: make sure that you have all of the information you think you need before entering a negotiation and then reaching a settlement so that the decision you make is truly one of self-determination and made with “informed consent !”
… Just something to think about.
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