Informed consent in mediation: A guiding principle for truly educated decisionmaking

Notre Dame Law Review

Volumn 74, Issue 3, 1999, Pages 775-840

  Nolan Haley, Jacqueline M ^a  

^a FORDHAM UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033436788     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (432)

1. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 6-11 (2d ed. 1992), for an historical account of the alternative dispute resolution movement and the place of mediation in that movement. Mediation's increased appeal is due to a variety of reasons including decreased costs, high satisfaction, and compliance rates. See, e.g., Barbara McAdoo & Nancy Welsh, Does ADR Really Have a Place on the Lawyer's Philosophical Map?, 18 HAMLINE J. PUB. L. & POL'Y 376 (1997) (stating that attorneys value mediation because of the perception that it encourages early settlement and therefore reduces costs of litigation). There are, however, inconsistent reports of reduced costs. See, e.g., JAMES S. KAKALIK ET AL., JUST, SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 20 (1996) [hereinafter RAND REPORT] (stating that mediation programs studied did not necessarily solve cost and delay problems). There are consistent reports that parties experience high levels of satisfaction with the mediation process. See, e.g., Chris Guthrie & James Levin, A "Party Satisfaction" Perspective on a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885 (1998) and sources cited therein; Robert A. Baruch Bush, "What Do We Need a Mediator For?" Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996) (citing the value of participation as the reason for high satisfaction rates).
2. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 6-11 (2d ed. 1992), for an historical account of the alternative dispute resolution movement and the place of mediation in that movement. Mediation's increased appeal is due to a variety of reasons including decreased costs, high satisfaction, and compliance rates. See, e.g., Barbara McAdoo & Nancy Welsh, Does ADR Really Have a Place on the Lawyer's Philosophical Map?, 18 HAMLINE J. PUB. L. & POL'Y 376 (1997) (stating that attorneys value mediation because of the perception that it encourages early settlement and therefore reduces costs of litigation). There are, however, inconsistent reports of reduced costs. See, e.g., JAMES S. KAKALIK ET AL., JUST, SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 20 (1996) [hereinafter RAND REPORT] (stating that mediation programs studied did not necessarily solve cost and delay problems). There are consistent reports that parties experience high levels of satisfaction with the mediation process. See, e.g., Chris Guthrie & James Levin, A "Party Satisfaction" Perspective on a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885 (1998) and sources cited therein; Robert A. Baruch Bush, "What Do We Need a Mediator For?" Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996) (citing the value of participation as the reason for high satisfaction rates).
3. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 6-11 (2d ed. 1992), for an historical account of the alternative dispute resolution movement and the place of mediation in that movement. Mediation's increased appeal is due to a variety of reasons including decreased costs, high satisfaction, and compliance rates. See, e.g., Barbara McAdoo & Nancy Welsh, Does ADR Really Have a Place on the Lawyer's Philosophical Map?, 18 HAMLINE J. PUB. L. & POL'Y 376 (1997) (stating that attorneys value mediation because of the perception that it encourages early settlement and therefore reduces costs of litigation). There are, however, inconsistent reports of reduced costs. See, e.g., JAMES S. KAKALIK ET AL., JUST, SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 20 (1996) [hereinafter RAND REPORT] (stating that mediation programs studied did not necessarily solve cost and delay problems). There are consistent reports that parties experience high levels of satisfaction with the mediation process. See, e.g., Chris Guthrie & James Levin, A "Party Satisfaction" Perspective on a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885 (1998) and sources cited therein; Robert A. Baruch Bush, "What Do We Need a Mediator For?" Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996) (citing the value of participation as the reason for high satisfaction rates).
4. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 6-11 (2d ed. 1992), for an historical account of the alternative dispute resolution movement and the place of mediation in that movement. Mediation's increased appeal is due to a variety of reasons including decreased costs, high satisfaction, and compliance rates. See, e.g., Barbara McAdoo & Nancy Welsh, Does ADR Really Have a Place on the Lawyer's Philosophical Map?, 18 HAMLINE J. PUB. L. & POL'Y 376 (1997) (stating that attorneys value mediation because of the perception that it encourages early settlement and therefore reduces costs of litigation). There are, however, inconsistent reports of reduced costs. See, e.g., JAMES S. KAKALIK ET AL., JUST, SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 20 (1996) [hereinafter RAND REPORT] (stating that mediation programs studied did not necessarily solve cost and delay problems). There are consistent reports that parties experience high levels of satisfaction with the mediation process. See, e.g., Chris Guthrie & James Levin, A "Party Satisfaction" Perspective on a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885 (1998) and sources cited therein; Robert A. Baruch Bush, "What Do We Need a Mediator For?" Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996) (citing the value of participation as the reason for high satisfaction rates).
5. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 6-11 (2d ed. 1992), for an historical account of the alternative dispute resolution movement and the place of mediation in that movement. Mediation's increased appeal is due to a variety of reasons including decreased costs, high satisfaction, and compliance rates. See, e.g., Barbara McAdoo & Nancy Welsh, Does ADR Really Have a Place on the Lawyer's Philosophical Map?, 18 HAMLINE J. PUB. L. & POL'Y 376 (1997) (stating that attorneys value mediation because of the perception that it encourages early settlement and therefore reduces costs of litigation). There are, however, inconsistent reports of reduced costs. See, e.g., JAMES S. KAKALIK ET AL., JUST, SPEEDY, AND INEXPENSIVE? AN EVALUATION OF JUDICIAL CASE MANAGEMENT UNDER THE CIVIL JUSTICE REFORM ACT 20 (1996) [hereinafter RAND REPORT] (stating that mediation programs studied did not necessarily solve cost and delay problems). There are consistent reports that parties experience high levels of satisfaction with the mediation process. See, e.g., Chris Guthrie & James Levin, A "Party Satisfaction" Perspective on a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISP. RESOL. 885 (1998) and sources cited therein; Robert A. Baruch Bush, "What Do We Need a Mediator For?" Mediation's "Value-Added" for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1 (1996) (citing the value of participation as the reason for high satisfaction rates).
6. See Wright v. Brockett, 571 N.Y.S.2d 660 (N.Y. Sup. Ct. 1991) (finding that tenant gave up the only housing she had known for twenty-seven years).
7. Some states permit mediation of actual life and death issues. In New York, for example, decisions about whether to terminate life support may be made through the mediation process. See N.Y. PUB. HEALTH LAW § 2972 (McKinney 1993); NANCY NEVELOPP DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 44-47 (1994) (describing mediation of dispute over patient's decision to forego life-saving medical care); see also Diane E. Hoffmann, Mediating Life and Death Decisions: A Critique, 36 ARIZ. L. REV. 821 (1994); Diane E. Hoffman & Naomi Karp, Mediating Bioethical Disputes, A.B.A. DISP. RESOL. MAC., Spring 1996, at 10-12.
8. Some states permit mediation of actual life and death issues. In New York, for example, decisions about whether to terminate life support may be made through the mediation process. See N.Y. PUB. HEALTH LAW § 2972 (McKinney 1993); NANCY NEVELOPP DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 44-47 (1994) (describing mediation of dispute over patient's decision to forego life-saving medical care); see also Diane E. Hoffmann, Mediating Life and Death Decisions: A Critique, 36 ARIZ. L. REV. 821 (1994); Diane E. Hoffman & Naomi Karp, Mediating Bioethical Disputes, A.B.A. DISP. RESOL. MAC., Spring 1996, at 10-12.
9. Some states permit mediation of actual life and death issues. In New York, for example, decisions about whether to terminate life support may be made through the mediation process. See N.Y. PUB. HEALTH LAW § 2972 (McKinney 1993); NANCY NEVELOPP DUBLER & LEONARD J. MARCUS, MEDIATING BIOETHICAL DISPUTES: A PRACTICAL GUIDE 44-47 (1994) (describing mediation of dispute over patient's decision to forego life-saving medical care); see also Diane E. Hoffmann, Mediating Life and Death Decisions: A Critique, 36 ARIZ. L. REV. 821 (1994); Diane E. Hoffman & Naomi Karp, Mediating Bioethical Disputes, A.B.A. DISP. RESOL. MAC., Spring 1996, at 10-12.
10. See, e.g., Administrative Dispute Resolution Act: Hearings on H.H. 2497 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 101st Cong. 66 (1990) (statement of Marshall J. Breger, Chairman, Administrative Conference of the United States, that the purpose of the Administrative Dispute Resolution Act was based "[w]holly on the principle of consent" and that based on consent parties could "shape procedures to meet their needs on a case by case basis). The purpose of this Act was to encourage federal government agencies to use alternatives to litigation in resolving disputes. Congress did not extend the Act and the legislation expired in 1995. See also Owen Fiss, Against Settlement, 93 YALE L.J. 1073 (1984); Lucy V. Katz, Compulsory Alternative Dispute Resolution and Voluntarism: Two-Headed Monster or Two Sides of the Coin?, 1993 J. DISP. RESOL. 1 (stating that "voluntariness is consistent with the underlying philosophy of ADR"); Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663, nn.129-38 (1995).
11. See, e.g., Administrative Dispute Resolution Act: Hearings on H.H. 2497 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 101st Cong. 66 (1990) (statement of Marshall J. Breger, Chairman, Administrative Conference of the United States, that the purpose of the Administrative Dispute Resolution Act was based "[w]holly on the principle of consent" and that based on consent parties could "shape procedures to meet their needs on a case by case basis). The purpose of this Act was to encourage federal government agencies to use alternatives to litigation in resolving disputes. Congress did not extend the Act and the legislation expired in 1995. See also Owen Fiss, Against Settlement, 93 YALE L.J. 1073 (1984); Lucy V. Katz, Compulsory Alternative Dispute Resolution and Voluntarism: Two-Headed Monster or Two Sides of the Coin?, 1993 J. DISP. RESOL. 1 (stating that "voluntariness is consistent with the underlying philosophy of ADR"); Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663, nn.129-38 (1995).
12. See, e.g., Administrative Dispute Resolution Act: Hearings on H.H. 2497 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 101st Cong. 66 (1990) (statement of Marshall J. Breger, Chairman, Administrative Conference of the United States, that the purpose of the Administrative Dispute Resolution Act was based "[w]holly on the principle of consent" and that based on consent parties could "shape procedures to meet their needs on a case by case basis). The purpose of this Act was to encourage federal government agencies to use alternatives to litigation in resolving disputes. Congress did not extend the Act and the legislation expired in 1995. See also Owen Fiss, Against Settlement, 93 YALE L.J. 1073 (1984); Lucy V. Katz, Compulsory Alternative Dispute Resolution and Voluntarism: Two-Headed Monster or Two Sides of the Coin?, 1993 J. DISP. RESOL. 1 (stating that "voluntariness is consistent with the underlying philosophy of ADR"); Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663, nn.129-38 (1995).
13. See, e.g., Administrative Dispute Resolution Act: Hearings on H.H. 2497 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 101st Cong. 66 (1990) (statement of Marshall J. Breger, Chairman, Administrative Conference of the United States, that the purpose of the Administrative Dispute Resolution Act was based "[w]holly on the principle of consent" and that based on consent parties could "shape procedures to meet their needs on a case by case basis). The purpose of this Act was to encourage federal government agencies to use alternatives to litigation in resolving disputes. Congress did not extend the Act and the legislation expired in 1995. See also Owen Fiss, Against Settlement, 93 YALE L.J. 1073 (1984); Lucy V. Katz, Compulsory Alternative Dispute Resolution and Voluntarism: Two-Headed Monster or Two Sides of the Coin?, 1993 J. DISP. RESOL. 1 (stating that "voluntariness is consistent with the underlying philosophy of ADR"); Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663, nn.129-38 (1995).
14. Respect for autonomy is the moral equivalent of the legal right of self-determination. See RUTH R. FADEN & TOM L. BEAUCHAMP, A HISTORY AND THEORY OF INFORMED CONSENT 120 (1986).
15. See JOHN STUART MILL, ON LIBERTY 6 (1873). Mill wrote: [T] he sole end for which mankind are warranted . . . in interfering with the liberty of action of any of their number, is self-protection . . . . The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right absolute. Over himself, over his own body and mind, the individual is sovereign. See also Natanson v. Kline, 350 P.2d 1093 (Kan. 1960) (stating that "Anglo-American law starts with the premise of thorough-going self-determination"); Schloendorff v. Society of N.Y. Hosp., 105 N.E.2d 92 (N.Y. 1914).
16. See STANDARDS OF CONDUCT FOR MEDIATORS, Preface to Joint Committee of Delegates from the American Arbitration Association, American Bar Association Sections of Dispute Resolution and Litigation, and the Society of Professionals in Dispute Resolution (1994) [hereinafter JOINT STANDARDS OF CONDUCT]. Standard I provides: "Self determination is the fundamental principle of mediation. It requires that the mediation process rely on the ability of the parties to reach a voluntary, uncoerced agreement. Any party may withdraw from mediation at any time." Id.
17. Id.
18. There is voluminous literature on informed consent in medical decisionmaking and modest but growing interest in informed consent in lawyering. See infra Part II.
19. See JAY FOLBERG & ALISON TAYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT LITIGATION 7-8 (1986); CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 14 (1986).
20. See JAY FOLBERG & ALISON TAYLOR, MEDIATION: A COMPREHENSIVE GUIDE TO RESOLVING CONFLICTS WITHOUT LITIGATION 7-8 (1986); CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 14 (1986).
21. See infra Part II and Part IV.D.
22. Fairness is a predominant concern in the mediation community. Few commentators would disagree that it is the normative standard governing mediation. Determining what constitutes fairness, however, is a difficult question. See infra note 57. The notion of fairness in mediation has both substantive and procedural elements. While most mediators agree on the necessity of fairness in the mediation process, there is considerable debate about whether mediators should be responsible for the fairness of mediation outcomes. I share the late Professor Maurice Rosenberg's conception that equates fairness with justice: "an optimal dispute resolution system is one that produces just results at the end of just proceedings." Maurice Rosenberg, Resolving Disputes Differently: Adieu to Adversary Justice?, 21 CREIGHTON L. REV. 801, 809 (1988).
23. These impediments can also affect the outcome of mediation. For a discussion of informed consent as an ethical dilemma in mediation, see Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications, 1994 J. DISP. RESOL. 1, 15 (1994).
24. See infra notes 151-65 and accompanying text.
25. See infra Part III.B.
26. This is a continuation of a larger project on the role of law and justice in mediation. See Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L.Q. 47 (1996) [hereinafter Nolan-Haley, Court Mediation]; Jacqueline M. Nolan-Haley, Lawyers, Clients and Mediation, 73 NOTRE DAME L. REV. 1369 (1998) [hereinafter Nolan-Haley, Lawyers, Clients and Mediation].
27. This is a continuation of a larger project on the role of law and justice in mediation. See Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L.Q. 47 (1996) [hereinafter Nolan-Haley, Court Mediation]; Jacqueline M. Nolan-Haley, Lawyers, Clients and Mediation, 73 NOTRE DAME L. REV. 1369 (1998) [hereinafter Nolan-Haley, Lawyers, Clients and Mediation].
28. This is a continuation of a larger project on the role of law and justice in mediation. See Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L.Q. 47 (1996) [hereinafter Nolan-Haley, Court Mediation]; Jacqueline M. Nolan-Haley, Lawyers, Clients and Mediation, 73 NOTRE DAME L. REV. 1369 (1998) [hereinafter Nolan-Haley, Lawyers, Clients and Mediation].
29. This is a continuation of a larger project on the role of law and justice in mediation. See Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L.Q. 47 (1996) [hereinafter Nolan-Haley, Court Mediation]; Jacqueline M. Nolan-Haley, Lawyers, Clients and Mediation, 73 NOTRE DAME L. REV. 1369 (1998) [hereinafter Nolan-Haley, Lawyers, Clients and Mediation].
30. Some parties may not be represented by counsel at the actual mediation session, but they may have been prepared or coached by attorneys prior to the session.
31. This approach has been endorsed in other aspects of mediation practice. The Society of Professionals in Dispute Resolution recommends as a central principle "that the greater degree of choice the parties have over the dispute resolution process, program or neutral, the less mandatory should be the qualifications requirements." SOCIETY OF PROFESSIONALS IN DISPUTE RESOLUTION, REPORT OF THE SPIDR COMMISSION ON QUALIFICATIONS (1989) [hereinafter SPIDR REPORT]. See also NATIONAL INSTITUTE FOR DISPUTE RESOLUTION, DISPUTE RESOLUTION FORUM, 3 (May 1989); Robert P. Schuwerk, Reflections on Ethics and Mediations, 38 S. TEX. L. REV. 757, 762 (1997) (arguing that standards governing mediators should differ in significant ways from the rules governing lawyers). Contextualized rulemaking has also been proposed for lawyers. See David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992) (arguing for contextualized regulation of the legal profession).
32. This approach has been endorsed in other aspects of mediation practice. The Society of Professionals in Dispute Resolution recommends as a central principle "that the greater degree of choice the parties have over the dispute resolution process, program or neutral, the less mandatory should be the qualifications requirements." SOCIETY OF PROFESSIONALS IN DISPUTE RESOLUTION, REPORT OF THE SPIDR COMMISSION ON QUALIFICATIONS (1989) [hereinafter SPIDR REPORT]. See also NATIONAL INSTITUTE FOR DISPUTE RESOLUTION, DISPUTE RESOLUTION FORUM, 3 (May 1989); Robert P. Schuwerk, Reflections on Ethics and Mediations, 38 S. TEX. L. REV. 757, 762 (1997) (arguing that standards governing mediators should differ in significant ways from the rules governing lawyers). Contextualized rulemaking has also been proposed for lawyers. See David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992) (arguing for contextualized regulation of the legal profession).
33. This approach has been endorsed in other aspects of mediation practice. The Society of Professionals in Dispute Resolution recommends as a central principle "that the greater degree of choice the parties have over the dispute resolution process, program or neutral, the less mandatory should be the qualifications requirements." SOCIETY OF PROFESSIONALS IN DISPUTE RESOLUTION, REPORT OF THE SPIDR COMMISSION ON QUALIFICATIONS (1989) [hereinafter SPIDR REPORT]. See also NATIONAL INSTITUTE FOR DISPUTE RESOLUTION, DISPUTE RESOLUTION FORUM, 3 (May 1989); Robert P. Schuwerk, Reflections on Ethics and Mediations, 38 S. TEX. L. REV. 757, 762 (1997) (arguing that standards governing mediators should differ in significant ways from the rules governing lawyers). Contextualized rulemaking has also been proposed for lawyers. See David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992) (arguing for contextualized regulation of the legal profession).
34. This approach has been endorsed in other aspects of mediation practice. The Society of Professionals in Dispute Resolution recommends as a central principle "that the greater degree of choice the parties have over the dispute resolution process, program or neutral, the less mandatory should be the qualifications requirements." SOCIETY OF PROFESSIONALS IN DISPUTE RESOLUTION, REPORT OF THE SPIDR COMMISSION ON QUALIFICATIONS (1989) [hereinafter SPIDR REPORT]. See also NATIONAL INSTITUTE FOR DISPUTE RESOLUTION, DISPUTE RESOLUTION FORUM, 3 (May 1989); Robert P. Schuwerk, Reflections on Ethics and Mediations, 38 S. TEX. L. REV. 757, 762 (1997) (arguing that standards governing mediators should differ in significant ways from the rules governing lawyers). Contextualized rulemaking has also been proposed for lawyers. See David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992) (arguing for contextualized regulation of the legal profession).
35. Mediation takes place today in a wide variety of formal and informal settings. See infra notes 260-62 and accompanying text.
36. Parties who voluntarily agree to enter into the mediation process are in a very different position from those who are required to attend a mediation session. See infra notes 248-59 and accompanying text.
37. See infra notes 263-87 and accompanying text.
38. Unrepresented parties should always be aware of their legal rights when they participate in mediation that involves legal issues. If they voluntarily choose to mediate, however, they may waive knowledge of those rights. See infra notes 217-30 and accompanying text.
39. I note here that transferring legal principles from one profession to another is fraught with difficulties. See infra notes 52, 236.
40. According to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research, the values underlying informed consent are deeply embedded in American culture and the American character; they transcend partisan ideologies and the politics of the moment. Fundamentally, informed consent is based on respect for the individual, and in particular, for each individual's capacity and right both to define his or her own goals and to make choices designed to achieve those goals. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Informed Consent as Active, Shared Decisionmaking, in 1 MAKING HEALTH CARE DECISIONS: THE ETHICAL AND LEGAL IMPLICATIONS OF INFORMED CONSENT IN THE PATIENT-PRACTITIOMER RELATIONSHIP 16, 17 (1982) [hereinafter MAKING HEALTH CARE DECISIONS].
41. See PAUL S. APPELBAUM ET AL., INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 35-65 (1987).
42. Jay Katz distinguishes between what judges have done - the legal doctrine of informed consent - and what they have aspired to - the idea of informed consent. Katz claims that informed consent does not regularly govern the relationship between physician and patient in practice. See JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT xvi, 227 (1984).
43. See APPELBAUM ET AL, supra note 25, at 56.
44. See id. at 57.
45. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
46. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
47. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
48. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
49. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
50. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
51. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
52. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
53. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
54. See, e.g., FADEN & BEAUCHAMP, supra note 5, at 30. There is currently a move to reform several aspects of informed consent in medical decisionmaking. Scholars have called for greater patient autonomy. See, e.g., Marjorie Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 YALE L.J. 219 (1985). Others call for enhanced understanding. See e.g., Cathy J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 WASH. & LEE L. REV. 379 (1990) (arguing not just for doctor's duty to disclose but patient's right to comprehend; based on six months of research observing how doctors gave information to patients). Some scholars cite the need for increased trust, see, e.g., Nancy E. Kass et al., Trust: The Fragile Foundation of Contemporary Biomedical Research, 26 HASTINGS CENTER REP. 25 (1996), while others call for more contextualized models. See Peter H. Schuck, Rethinking Informed Consent, 103 YALE L.J. 899 (1994). A growing bioethics literature argues in favor of less patient-centered ethics and more focus on process models and family involvement. See Jeffrey Blustein, The Family in Medical Decisionmaking, 23 HASTINGS CENTER REP. 6, 11 (1993) (arguing that patients should consider the interests of family members in making decisions but the ultimate decision is theirs); John Hardwig, What About the Family?, 20 HASTINGS CENTER REP. 5 (1990) (arguing for abandonment of the patient-centered ethic in favor of a presumption of equality of interests, both medical and nonmedical of each family member); James Lindemann Nelson, Taking Families Seriously, 22 HASTINGS CENTER REP. 6, 7 (1992) (stating that there is a presumption that a competent patient is the ultimate decisionmaker but the presumption can be rebutted by showing that family interests are sufficiently compelling to override the patient's wishes). For a focus on shared decisionmaking, see DAN W. BROCK, LIFE AND DEATH: PHILOSOPHICAL ESSAYS IN BIOMEDICAL ETHICS 55 (1993); Ezekiel J. Emmanuel & Linda L. Emmanuel, Four Models of the Physician-Patient Relationship, 267 JAMA 2221 (1992); Mark G. Kuzcewski, Reconceiving the Family: The Process of Consent in Medical Decision-Making, 26 HASTINGS CENTER REP. 30 (1996).
55. For a discussion of the evolution of tort doctrine from a requirement of "simple" to "informed" consent, see APPELBAUM ET AL., supra note 25, at 35-62; FADEN & BEAUCHAMP, supra note 5, at 125-43. The phrase "informed consent" was first articulated in Salgo v. Leland Stanford Jr. University Board of Trustees, 317 P.2d 170, 181 (Cal. Dist. Ct. App. 1957) (discussing physicians' duty to give "full disclosure of facts necessary to an informed consent").
56. As Justice Benjamin Cardozo observed almost a century ago: "[A] surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." Schloendorff v. Society of N.Y. Hosp., 105 N.E.Sd 92, 130 (N.Y. 1914).
57. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 190 (5th ed. 1984). The distinction between the use of both theories of liability is articulated by the court's opinion in Scott v. Bradford, 606 P.2d 554, (Okla. 1979): "If treatment is completely unauthorized and performed without any consent at all, there has been a battery. However, if the physician obtains a patient's consent but has breached his duty to inform, the patient has a cause of action sounding in negligence . . . ." Id. at 559.
58. Physicians are required to disclose risks that are considered "material." PROSSER & KEETON ET AL., supra note 32, at 191. See, e.g., Natanson v. Kline, 350 P.2d 1093, 1106 (Kan. 1960) (reversing verdicts for defendants in medical malpractice cases where improper instructions were given to jury and stating that the physician is required "to make a reasonable disclosure . . . of the nature and probable consequences of the suggested . . . treatment, and . . . to make a reasonable disclosure of the dangers within his knowledge which were incident to, or possible in, the treatment he proposed to administer").
59. See, e.g., Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993) (finding that disclosure of alternative treatment was required under Georgia law only where treatment is generally accepted by reasonably prudent doctors); Gemme v. Goldberg, 626 A.2d 318 (Conn. App. Ct. 1993) (finding a failure to inform patient of viable alternatives to treatment).
60. See APPELBAUM ET AL, supra note 25, at 57.
61. The relevant inquiry is directed towards what a reasonably prudent physician would do. See, e.g., Brune v. Belinkoff, 235 N.E.2d 793, 798 (Mass. 1968) (overruling the "locality" rule of Small v. Howard and holding that "a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession").
62. See, e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (holding surgeon liable for failure to reveal risk of paralysis involved in a laminectomy); Cobbs v. Grant, 502 P.2d 1 (Cal. 1972) (finding insufficient evidence to support theory of surgeon's negligence or failure to obtain patient's consent); Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972) (finding sufficient evidence to support theory of radiologist's negligence and holding that patient claiming lack of informed consent was not required to provide expert testimony regarding propriety of radiologist's silence as to hazards of radiation treatment). Some courts have adopted a more subjective causation test that focuses on what a particular patient would have deemed material. See PROSSER & KEETON ET AL., supra note 32, at 191, 192. Faden and Beauchamp observe, however, that the subjective standard has been created by legal scholarship rather than by the courts. See FADEN & BEAUCHAMP, supra note 5, at 33-34, 46 n.34.
63. See, e.g., Canterbury, 464 F.2d at 779-80 ("True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each . . . . From these . . . considerations springs the . . . requirement, of a reasonable divulgence by physician to patient to make such a decision possible.").
64. See The Law of Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra note 24, at 193, 198.
65. See DAVID A. BINDER ET AL., LAWYERS As COUNSELORS: A CLIENT-CENTERED APPROACH (1990).
66. In this regard, Professor Robert Cochran has observed that while "lawyer codes hold up client control as an aspiration . . . . [t]hose portions of the code that encourage client control do not require it." Robert F. Cochran, Jr., Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure To Allow the Client To Control Negotiation and Pursue Alternatives to Litigation, 47 WASH. & LEE L. REV. 819, 825 (1990).
67. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY Rule 1.4 (1997).
68. See supra notes 30-35 and accompanying text.
69. See GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING 488 (2d ed. 1994).
70. MODEL CODE OF PROFESSIONAL RESPONSIBILITY Rule 1.2(a) (1997) ("[A] lawyer shall abide by a client's decision concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by the client's decision whether to accept an offer of settlement of a matter . . . .")
71. David Luban has eloquently captured the inherent difficulty of the ends/ means concept in his observation that it assumes a sharp dichotomy between ends and means, according to which a certain result (acquittal, a favorable settlement, etc.) is all that the client desires, while the legal tactics and arguments are merely routes to that result. No doubt this is true in many cases, but it need not be: the client may want to win acquittal by asserting a certain right, because it vindicates him in a way that matters to him; or he may wish to obtain a settlement without using a certain tactic, because he disapproves of the tactic. In that case, what the lawyer takes to be mere means are really part of the client's ends. David Luban, Paternalism and the Legal Profession, 1981 Wis. L. REV. 454, 459 n.9.
72. See, e.g., STEPHEN GILLERS, REGULATION OF LAUYERS: PROBLEMS OF LAW AND ETHICS 69 (4th ed. 1995); JOHN T. NOONAN, JR. & RICHARD W. PAINTER, PROFESSIONAL AND PERSONAL RESPONSIBILITIES OF THE LAWYER 49 (1997); DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 604, 605 (2d ed. 1995); DEBORAH RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 411 (1994); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 149 (1986); RICHARD A. ZITRIN & CAROL M. LANGFORD, LEGAL ETHICS IN THE PRACTICE OF LAW 211 (1995). The nature of informed consent in the lawyer-client relationship is a topic that demands comprehensive treatment and is beyond the scope of this article.
73. See, e.g., STEPHEN GILLERS, REGULATION OF LAUYERS: PROBLEMS OF LAW AND ETHICS 69 (4th ed. 1995); JOHN T. NOONAN, JR. & RICHARD W. PAINTER, PROFESSIONAL AND PERSONAL RESPONSIBILITIES OF THE LAWYER 49 (1997); DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 604, 605 (2d ed. 1995); DEBORAH RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 411 (1994); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 149 (1986); RICHARD A. ZITRIN & CAROL M. LANGFORD, LEGAL ETHICS IN THE PRACTICE OF LAW 211 (1995). The nature of informed consent in the lawyer-client relationship is a topic that demands comprehensive treatment and is beyond the scope of this article.
74. See, e.g., STEPHEN GILLERS, REGULATION OF LAUYERS: PROBLEMS OF LAW AND ETHICS 69 (4th ed. 1995); JOHN T. NOONAN, JR. & RICHARD W. PAINTER, PROFESSIONAL AND PERSONAL RESPONSIBILITIES OF THE LAWYER 49 (1997); DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 604, 605 (2d ed. 1995); DEBORAH RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 411 (1994); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 149 (1986); RICHARD A. ZITRIN & CAROL M. LANGFORD, LEGAL ETHICS IN THE PRACTICE OF LAW 211 (1995). The nature of informed consent in the lawyer-client relationship is a topic that demands comprehensive treatment and is beyond the scope of this article.
75. See, e.g., STEPHEN GILLERS, REGULATION OF LAUYERS: PROBLEMS OF LAW AND ETHICS 69 (4th ed. 1995); JOHN T. NOONAN, JR. & RICHARD W. PAINTER, PROFESSIONAL AND PERSONAL RESPONSIBILITIES OF THE LAWYER 49 (1997); DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 604, 605 (2d ed. 1995); DEBORAH RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 411 (1994); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 149 (1986); RICHARD A. ZITRIN & CAROL M. LANGFORD, LEGAL ETHICS IN THE PRACTICE OF LAW 211 (1995). The nature of informed consent in the lawyer-client relationship is a topic that demands comprehensive treatment and is beyond the scope of this article.
76. See, e.g., STEPHEN GILLERS, REGULATION OF LAUYERS: PROBLEMS OF LAW AND ETHICS 69 (4th ed. 1995); JOHN T. NOONAN, JR. & RICHARD W. PAINTER, PROFESSIONAL AND PERSONAL RESPONSIBILITIES OF THE LAWYER 49 (1997); DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 604, 605 (2d ed. 1995); DEBORAH RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 411 (1994); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 149 (1986); RICHARD A. ZITRIN & CAROL M. LANGFORD, LEGAL ETHICS IN THE PRACTICE OF LAW 211 (1995). The nature of informed consent in the lawyer-client relationship is a topic that demands comprehensive treatment and is beyond the scope of this article.
77. See, e.g., STEPHEN GILLERS, REGULATION OF LAUYERS: PROBLEMS OF LAW AND ETHICS 69 (4th ed. 1995); JOHN T. NOONAN, JR. & RICHARD W. PAINTER, PROFESSIONAL AND PERSONAL RESPONSIBILITIES OF THE LAWYER 49 (1997); DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 604, 605 (2d ed. 1995); DEBORAH RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 411 (1994); CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 149 (1986); RICHARD A. ZITRIN & CAROL M. LANGFORD, LEGAL ETHICS IN THE PRACTICE OF LAW 211 (1995). The nature of informed consent in the lawyer-client relationship is a topic that demands comprehensive treatment and is beyond the scope of this article.
78. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering
79. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
80. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
81. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
82. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
83. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
84. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
85. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
86. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
87. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
88. See DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974); Susan R. Martyn, Informed Consent in the Practice of Law, 48 GEO. WASH. L. REV. 307 (1980); Judith L. Maute, Allocation of Decisionmaking Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVIS L. REV. 1049 (1984); Gary A. Munneke & Theresa Loscalzo, The Lawyers's Duty to Keep Clients Informed: Establishing a Standard of Care in Professional Liability Actions, 9 PACE L. REV. 391 (1989); Cornelius J. Peck, A New Tort Liability for Lack of Informed Consent in Legal Matters, 44 LA. L. REV. 1289 (1984); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. PA. L. REV. 41 (1979) [hereinafter Spiegel, Lawyering and Client Decisionmaking]; Mark Spiegel, The New Model Rules of Professional Conduct: Lawyer-Client Decisionmaking and the Role of Rules in Structuring the Lawyer-Client Dialogue, 1980 AM. B. FOUND. RES. J. 1003 [hereinafter Spiegel, The New Model Rules]; Marcy Strauss, Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy, 65 N.C. L. REV. 315 (1987). More recently, the literature has focused on effective client decisionmaking rather than on mechanical concepts of informed consent. A recent law school casebook summarizes the issue as follows: The central question is not, however, whether the lawyer can make a recommendation to clients. The central question is whether the lawyer has provided the information necessary for the client to be an effective decision maker . . . . Our experience . . . leads us to believe that with appropriate information from the lawyer-information about assessment, options, and predictions - most clients can be effective decisionmakers. ROGER S. HAYDOCK ET AL., LAWYERING: PRACTICE AND PLANNING 86, 87 (1996). I have argued elsewhere for a deliberative client counseling model in representational mediation practice to help achieve the goal of informed consent in mediation. See Nolan-Haley, Lawyers,Clients and Mediation, supra note 16.
89. As a number of commentators have observed, the legal profession's lack of interest is all the more remarkable given its involvement in developing an informed consent model for the medical profession. See, e.g., Strauss, supra note 48, at 316, 317; Speigel, Lawyering and Client Decisionmaking, supra note 48, at 42 (stating that "[l]awyers created the doctrine of informed consent for the medical profession").
90. Spiegel, Lawyer and Client Decisionmaking, supra note 48, at 140.
91. See supra note 48.
92. See, e.g., BINDER ET AL., supra note 40, at 278 n.46 (citing FADEN & BEAUCHAMP, supra note 5) (noting the debate in the medical profession about the quantity and kind of information that must be disclosed and the meaning of understanding). Binder accepts, however, the philosophy of an informed consent standard to the extent that it "would push lawyers towards making clients real partners in the decisionmaking process." Id.
93. See, e.g., Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501 (1990); Alex J. Hurder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996). In practice, decisionmaking questions are highly contextual. See Ann Southworth, Lawyer-Client Decisonmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 1101 (1996).
94. See, e.g., Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501 (1990); Alex J. Hurder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996). In practice, decisionmaking questions are highly contextual. See Ann Southworth, Lawyer-Client Decisonmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 1101 (1996).
95. See, e.g., Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L. REV. 501 (1990); Alex J. Hurder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 BUFF. L. REV. 71 (1996). In practice, decisionmaking questions are highly contextual. See Ann Southworth, Lawyer-Client Decisonmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers' Norms, 9 GEO. J. LEGAL ETHICS 1101 (1996).
96. See, e.g., Cochran, supra note 41 (favoring greater client autonomy); Camille A. Gear, The Ideology of Dominations: Barriers to Client Autonomy in Legal Ethics Scholarship, 107 YALE L.J. 2473 (1998); see also Donald F. Harris, Prisoners of Prestige? Paternalism and the Legal Profession, 17 J. LEGAL PROF. 125 (1992) (stating that the Model Code and Model Rules do not adequately protect clients' autonomy).
97. See, e.g., Cochran, supra note 41 (favoring greater client autonomy); Camille A. Gear, The Ideology of Dominations: Barriers to Client Autonomy in Legal Ethics Scholarship, 107 YALE L.J. 2473 (1998); see also Donald F. Harris, Prisoners of Prestige? Paternalism and the Legal Profession, 17 J. LEGAL PROF. 125 (1992) (stating that the Model Code and Model Rules do not adequately protect clients' autonomy).
98. See, e.g., Duncan Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982) (stating that paternalism is justified when actor's choice did not truly express his identity, for example, because of fear and depression); Luban, supra note 46 (stating that paternalistic coercion is justified when the client's goal fails to meet minimal tests of reasonableness); William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213 (1991) (discussing "crude" versus "refined" views of autonomy); see also Mark Spiegel, The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client Counseling, 1997 BYU L. REV. 307 (1997) (arguing against Professor Simon's suggestion that there is no meaningful difference between autonomy and paternalism).
99. See, e.g., Duncan Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982) (stating that paternalism is justified when actor's choice did not truly express his identity, for example, because of fear and depression); Luban, supra note 46 (stating that paternalistic coercion is justified when the client's goal fails to meet minimal tests of reasonableness); William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213 (1991) (discussing "crude" versus "refined" views of autonomy); see also Mark Spiegel, The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client Counseling, 1997 BYU L. REV. 307 (1997) (arguing against Professor Simon's suggestion that there is no meaningful difference between autonomy and paternalism).
100. See, e.g., Duncan Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982) (stating that paternalism is justified when actor's choice did not truly express his identity, for example, because of fear and depression); Luban, supra note 46 (stating that paternalistic coercion is justified when the client's goal fails to meet minimal tests of reasonableness); William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213 (1991) (discussing "crude" versus "refined" views of autonomy); see also Mark Spiegel, The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client Counseling, 1997 BYU L. REV. 307 (1997) (arguing against Professor Simon's suggestion that there is no meaningful difference between autonomy and paternalism).
101. See Cochran, supra note 41; Lynn Nelson, Legal Informed Consent: Is It a Concept Whose Time Has Come?, 1991 A.B.A. SEC. DISP. RESOL. MAG. 1, 2; Frank E. A. Sander & Michael Prigoff, At Issue: Professional Responsibility: Should There Be a Duty To Advise Clients of ADR Options?, 74 A.B.A. J. 5050, 5050-51 (1990).
102. See Cochran, supra note 41; Lynn Nelson, Legal Informed Consent: Is It a Concept Whose Time Has Come?, 1991 A.B.A. SEC. DISP. RESOL. MAG. 1, 2; Frank E. A. Sander & Michael Prigoff, At Issue: Professional Responsibility: Should There Be a Duty To Advise Clients of ADR Options?, 74 A.B.A. J. 5050, 5050-51 (1990).
103. There is little dispute that fairness is the fundamental goal of any dispute resolution process including mediation. See, e.g., AMERICAN ARBITRATION ASSOCIATION, CONSUMER DUE PROCESS PROTOCOL 13-14 (May 1998) [hereinafter AAA CONSUMER PROTOCAL] (arguing that fairness is the fundamental goal of ADR processes); MELINDA OSTERMEYER & SUSAN L. KEILIZT, CENTER FOR DISPUTE SETTLEMENT AND INSTITUTE OF JUDICIAL ADMINISTRATION, STATE JUSTICE INSTITUTE, MONITORING AND EVALUATING COURT-BASED DISPUTE RESOLUTION PROGRAMS: A GUIDE FOR JUDGES AND COURT MANAGERS 32 (1997) ("Above all else, ADR should be fair."); DANIEL MCGILLIS, COMMUNITY MEDIATION PROGRAMS: DEVELOPEMENTS AND CHALLENGES, 55 (1997) ("[I]t seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair."); MOORE, supra note 10, at 303 ("The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties."). How to achieve the goal of fairness, however, has and no doubt will continue to be the subject of much debate. Compare Judith L. Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. DISP. RESOL. 347 with Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. DISP. RESOL. 909 (1998). See also Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); infra notes 88, 101 and accompanying text; Cecilia Albin, The Role of Fairness in Negotiation, 9 NEGOTIATION J. 223 (1993) (identifying four aspects of fairness in negotiation).
104. There is little dispute that fairness is the fundamental goal of any dispute resolution process including mediation. See, e.g., AMERICAN ARBITRATION ASSOCIATION, CONSUMER DUE PROCESS PROTOCOL 13-14 (May 1998) [hereinafter AAA CONSUMER PROTOCAL] (arguing that fairness is the fundamental goal of ADR processes); MELINDA OSTERMEYER & SUSAN L. KEILIZT, CENTER FOR DISPUTE SETTLEMENT AND INSTITUTE OF JUDICIAL ADMINISTRATION, STATE JUSTICE INSTITUTE, MONITORING AND EVALUATING COURT-BASED DISPUTE RESOLUTION PROGRAMS: A GUIDE FOR JUDGES AND COURT MANAGERS 32 (1997) ("Above all else, ADR should be fair."); DANIEL MCGILLIS, COMMUNITY MEDIATION PROGRAMS: DEVELOPEMENTS AND CHALLENGES, 55 (1997) ("[I]t seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair."); MOORE, supra note 10, at 303 ("The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties."). How to achieve the goal of fairness, however, has and no doubt will continue to be the subject of much debate. Compare Judith L. Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. DISP. RESOL. 347 with Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. DISP. RESOL. 909 (1998). See also Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); infra notes 88, 101 and accompanying text; Cecilia Albin, The Role of Fairness in Negotiation, 9 NEGOTIATION J. 223 (1993) (identifying four aspects of fairness in negotiation).
105. There is little dispute that fairness is the fundamental goal of any dispute resolution process including mediation. See, e.g., AMERICAN ARBITRATION ASSOCIATION, CONSUMER DUE PROCESS PROTOCOL 13-14 (May 1998) [hereinafter AAA CONSUMER PROTOCAL] (arguing that fairness is the fundamental goal of ADR processes); MELINDA OSTERMEYER & SUSAN L. KEILIZT, CENTER FOR DISPUTE SETTLEMENT AND INSTITUTE OF JUDICIAL ADMINISTRATION, STATE JUSTICE INSTITUTE, MONITORING AND EVALUATING COURT-BASED DISPUTE RESOLUTION PROGRAMS: A GUIDE FOR JUDGES AND COURT MANAGERS 32 (1997) ("Above all else, ADR should be fair."); DANIEL MCGILLIS, COMMUNITY MEDIATION PROGRAMS: DEVELOPEMENTS AND CHALLENGES, 55 (1997) ("[I]t seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair."); MOORE, supra note 10, at 303 ("The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties."). How to achieve the goal of fairness, however, has and no doubt will continue to be the subject of much debate. Compare Judith L. Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. DISP. RESOL. 347 with Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. DISP. RESOL. 909 (1998). See also Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); infra notes 88, 101 and accompanying text; Cecilia Albin, The Role of Fairness in Negotiation, 9 NEGOTIATION J. 223 (1993) (identifying four aspects of fairness in negotiation).
106. There is little dispute that fairness is the fundamental goal of any dispute resolution process including mediation. See, e.g., AMERICAN ARBITRATION ASSOCIATION, CONSUMER DUE PROCESS PROTOCOL 13-14 (May 1998) [hereinafter AAA CONSUMER PROTOCAL] (arguing that fairness is the fundamental goal of ADR processes); MELINDA OSTERMEYER & SUSAN L. KEILIZT, CENTER FOR DISPUTE SETTLEMENT AND INSTITUTE OF JUDICIAL ADMINISTRATION, STATE JUSTICE INSTITUTE, MONITORING AND EVALUATING COURT-BASED DISPUTE RESOLUTION PROGRAMS: A GUIDE FOR JUDGES AND COURT MANAGERS 32 (1997) ("Above all else, ADR should be fair."); DANIEL MCGILLIS, COMMUNITY MEDIATION PROGRAMS: DEVELOPEMENTS AND CHALLENGES, 55 (1997) ("[I]t seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair."); MOORE, supra note 10, at 303 ("The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties."). How to achieve the goal of fairness, however, has and no doubt will continue to be the subject of much debate. Compare Judith L. Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. DISP. RESOL. 347 with Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. DISP. RESOL. 909 (1998). See also Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); infra notes 88, 101 and accompanying text; Cecilia Albin, The Role of Fairness in Negotiation, 9 NEGOTIATION J. 223 (1993) (identifying four aspects of fairness in negotiation).
107. There is little dispute that fairness is the fundamental goal of any dispute resolution process including mediation. See, e.g., AMERICAN ARBITRATION ASSOCIATION, CONSUMER DUE PROCESS PROTOCOL 13-14 (May 1998) [hereinafter AAA CONSUMER PROTOCAL] (arguing that fairness is the fundamental goal of ADR processes); MELINDA OSTERMEYER & SUSAN L. KEILIZT, CENTER FOR DISPUTE SETTLEMENT AND INSTITUTE OF JUDICIAL ADMINISTRATION, STATE JUSTICE INSTITUTE, MONITORING AND EVALUATING COURT-BASED DISPUTE RESOLUTION PROGRAMS: A GUIDE FOR JUDGES AND COURT MANAGERS 32 (1997) ("Above all else, ADR should be fair."); DANIEL MCGILLIS, COMMUNITY MEDIATION PROGRAMS: DEVELOPEMENTS AND CHALLENGES, 55 (1997) ("[I]t seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair."); MOORE, supra note 10, at 303 ("The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties."). How to achieve the goal of fairness, however, has and no doubt will continue to be the subject of much debate. Compare Judith L. Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. DISP. RESOL. 347 with Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. DISP. RESOL. 909 (1998). See also Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); infra notes 88, 101 and accompanying text; Cecilia Albin, The Role of Fairness in Negotiation, 9 NEGOTIATION J. 223 (1993) (identifying four aspects of fairness in negotiation).
108. There is little dispute that fairness is the fundamental goal of any dispute resolution process including mediation. See, e.g., AMERICAN ARBITRATION ASSOCIATION, CONSUMER DUE PROCESS PROTOCOL 13-14 (May 1998) [hereinafter AAA CONSUMER PROTOCAL] (arguing that fairness is the fundamental goal of ADR processes); MELINDA OSTERMEYER & SUSAN L. KEILIZT, CENTER FOR DISPUTE SETTLEMENT AND INSTITUTE OF JUDICIAL ADMINISTRATION, STATE JUSTICE INSTITUTE, MONITORING AND EVALUATING COURT-BASED DISPUTE RESOLUTION PROGRAMS: A GUIDE FOR JUDGES AND COURT MANAGERS 32 (1997) ("Above all else, ADR should be fair."); DANIEL MCGILLIS, COMMUNITY MEDIATION PROGRAMS: DEVELOPEMENTS AND CHALLENGES, 55 (1997) ("[I]t seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair."); MOORE, supra note 10, at 303 ("The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties."). How to achieve the goal of fairness, however, has and no doubt will continue to be the subject of much debate. Compare Judith L. Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. DISP. RESOL. 347 with Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. DISP. RESOL. 909 (1998). See also Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); infra notes 88, 101 and accompanying text; Cecilia Albin, The Role of Fairness in Negotiation, 9 NEGOTIATION J. 223 (1993) (identifying four aspects of fairness in negotiation).
109. There is little dispute that fairness is the fundamental goal of any dispute resolution process including mediation. See, e.g., AMERICAN ARBITRATION ASSOCIATION, CONSUMER DUE PROCESS PROTOCOL 13-14 (May 1998) [hereinafter AAA CONSUMER PROTOCAL] (arguing that fairness is the fundamental goal of ADR processes); MELINDA OSTERMEYER & SUSAN L. KEILIZT, CENTER FOR DISPUTE SETTLEMENT AND INSTITUTE OF JUDICIAL ADMINISTRATION, STATE JUSTICE INSTITUTE, MONITORING AND EVALUATING COURT-BASED DISPUTE RESOLUTION PROGRAMS: A GUIDE FOR JUDGES AND COURT MANAGERS 32 (1997) ("Above all else, ADR should be fair."); DANIEL MCGILLIS, COMMUNITY MEDIATION PROGRAMS: DEVELOPEMENTS AND CHALLENGES, 55 (1997) ("[I]t seems quite clear that if any process claims to render a high quality of justice, the disputants whose cases are handled by the process should view the process as fair."); MOORE, supra note 10, at 303 ("The goal of negotiation and mediation is a settlement that is seen as fair and equitable by all parties."). How to achieve the goal of fairness, however, has and no doubt will continue to be the subject of much debate. Compare Judith L. Maute, Mediator Accountability: Responding to Fairness Concerns, 1990 J. DISP. RESOL. 347 with Joseph B. Stulberg, Fairness and Mediation, 13 OHIO ST. J. DISP. RESOL. 909 (1998). See also Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); infra notes 88, 101 and accompanying text; Cecilia Albin, The Role of Fairness in Negotiation, 9 NEGOTIATION J. 223 (1993) (identifying four aspects of fairness in negotiation).
110. See, e.g., GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 3-10 (1988).
111. The word "autonomy" comes from the Greek words "autos," meaning self, and "nomos," meaning rule or law. Id. at 12.
112. See, e.g., TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 123 (4th ed. 1994) (discussing the elements of autonomous action); Gerald Dworkin, Autonomy and Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra note 24, at 63; DWORKIN, supra note 58; James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 30 n.165 (1995); Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 26 (1989) (stating that autonomy includes feeling). Moral philosopher Joseph Kupper explains autonomy in terms of deliberation and action. See JOSEPH H. KUPFER, AUTONOMY AND SOCIAL INTERACTION 10-14 (1990).
113. See, e.g., TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 123 (4th ed. 1994) (discussing the elements of autonomous action); Gerald Dworkin, Autonomy and Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra note 24, at 63; DWORKIN, supra note 58; James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 30 n.165 (1995); Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 26 (1989) (stating that autonomy includes feeling). Moral philosopher Joseph Kupper explains autonomy in terms of deliberation and action. See JOSEPH H. KUPFER, AUTONOMY AND SOCIAL INTERACTION 10-14 (1990).
114. See, e.g., TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 123 (4th ed. 1994) (discussing the elements of autonomous action); Gerald Dworkin, Autonomy and Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra note 24, at 63; DWORKIN, supra note 58; James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 30 n.165 (1995); Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 26 (1989) (stating that autonomy includes feeling). Moral philosopher Joseph Kupper explains autonomy in terms of deliberation and action. See JOSEPH H. KUPFER, AUTONOMY AND SOCIAL INTERACTION 10-14 (1990).
115. See, e.g., TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 123 (4th ed. 1994) (discussing the elements of autonomous action); Gerald Dworkin, Autonomy and Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra note 24, at 63; DWORKIN, supra note 58; James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 30 n.165 (1995); Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 26 (1989) (stating that autonomy includes feeling). Moral philosopher Joseph Kupper explains autonomy in terms of deliberation and action. See JOSEPH H. KUPFER, AUTONOMY AND SOCIAL INTERACTION 10-14 (1990).
116. See, e.g., TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 123 (4th ed. 1994) (discussing the elements of autonomous action); Gerald Dworkin, Autonomy and Informed Consent, in 3 MAKING HEALTH CARE DECISIONS, supra note 24, at 63; DWORKIN, supra note 58; James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1, 30 n.165 (1995); Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 26 (1989) (stating that autonomy includes feeling). Moral philosopher Joseph Kupper explains autonomy in terms of deliberation and action. See JOSEPH H. KUPFER, AUTONOMY AND SOCIAL INTERACTION 10-14 (1990).
117. See FADEN & BEAUCHAMP, supra note 5, at 120 ("[T]he right of self-determination is the legal equivalent of the moral principle of respect for autonomy").
118. Autonomy, however, is not the exclusive interest honored in mediation. A report of the Society of Professionals in Dispute Resolution describes several conflicting values and goals in dispute resolution including: (1) increased disputant participation and control of the process and outcome, (2) restoration of relationships, (3) increased efficiency of the judicial system and lowered costs, (4) preservation of social order and stability, (5) maximization of joint gains, (6) fair process, (7) fair and stable outcomes, and (8) social justice. See SOCIETY OF PROFESSIONALS IN DISPUTE RESOLUTION, Ensuring Competence and Quality in Dispute Resolution Practice, REPORT 2 OF THE SPIDR COMMISSION ON QUALIFICATIONS 5 (1995).
119. Dworkin wrote that: [T] here is value connected with being self-determining that is not a matter either of bringing about good results or the pleasures of the process itself. This is the intrinsic desirability of exercising the capacity for self-determination. We desire to be recognized by others as the kind of creature capable of determining our own destiny. Our own sense of self-respect is tied to the respect of others - and this is not just a matter of psychology. Second, notions of creativity, of risk-taking, of adherence to principle, of responsibility, are all linked conceptually to the possibility of autonomous action. DWORKIN, supra note 58, at 112.
120. STANDARDS OF CONDUCT, supra note 7, Standard I.
121. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); FOLBERG & TAYLOR, supra note 10, at 10; JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES 61 (1995) (empowerment); James Alfini & Gerald S. Clay, Should Lawyer-Mediators be Prohibited from Providing Legal Advice or Evaluations?, 1994 A.B.A. SEC. DISP. RESOL. 8.
122. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); FOLBERG & TAYLOR, supra note 10, at 10; JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES 61 (1995) (empowerment); James Alfini & Gerald S. Clay, Should Lawyer-Mediators be Prohibited from Providing Legal Advice or Evaluations?, 1994 A.B.A. SEC. DISP. RESOL. 8.
123. See, e.g., ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994); FOLBERG & TAYLOR, supra note 10, at 10; JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES 61 (1995) (empowerment); James Alfini & Gerald S. Clay, Should Lawyer-Mediators be Prohibited from Providing Legal Advice or Evaluations?, 1994 A.B.A. SEC. DISP. RESOL. 8.
124. In practice, however, relational and communal values may not control. Depending upon the kind of mediation and whether lawyers are involved, the exercise of autonomy in mediation can be an adversarial or nonexistent experience. See, e.g., James Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation "?, 19 FLA. ST. U. L. REV. 47 (1991); Stacy Burns, The Name of the Game Is Movement: Concession Seeking in Judicial Mediation of Large Money Damage Cases, 15 MED. Q. 359, 362-63 (1998) (describing mediation of large money damage cases by acting and former judges in a public courts).
125. In practice, however, relational and communal values may not control. Depending upon the kind of mediation and whether lawyers are involved, the exercise of autonomy in mediation can be an adversarial or nonexistent experience. See, e.g., James Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation "?, 19 FLA. ST. U. L. REV. 47 (1991); Stacy Burns, The Name of the Game Is Movement: Concession Seeking in Judicial Mediation of Large Money Damage Cases, 15 MED. Q. 359, 362-63 (1998) (describing mediation of large money damage cases by acting and former judges in a public courts).
126. Lon L. Fuller, Mediation - Its Forms and Functions, 44 S. CAL. L. REV. 305, 325 (1971).
127. See Nedelsky, supra note 60.
128. Thus, mediation autonomy operates individually and communally and in this regard it shares feminist and communitarian concerns with the interdependence of all members of the moral and political community. See AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: THE REINVENTION OF AMERICAN SOCIETY 261 (1993) (stating that mediation and arbitration are better than adversarial litigation); Nedelsky, supra note 60, at 8.
129. The ability to make such choices distinguishes mediation from adjudication.
130. Alison Taylor makes this point so well: "The clients are in charge of the mandate, scope and outcome of mediation, and the mediator is in charge of the process." Alison Taylor, Concepts of Neutrality in Family Mediation: Contexts, Ethics, Influence, and Transformative Process, 14 MEDIATION Q. 215 (1997). Of course, in some forms of evaluative mediation, the parties may give the mediator substantial control over the outcome. See infra notes 102-10 and accompanying text (discussing evaluative and facilitative approaches to mediation); see also Bernard Mayer, The Dynamics of Power in Mediation and Negotiation, 16 MEDIATION Q. 75 (1998) (arguing that the mediator's power over the process derives from the parties' consent).
131. Alison Taylor makes this point so well: "The clients are in charge of the mandate, scope and outcome of mediation, and the mediator is in charge of the process." Alison Taylor, Concepts of Neutrality in Family Mediation: Contexts, Ethics, Influence, and Transformative Process, 14 MEDIATION Q. 215 (1997). Of course, in some forms of evaluative mediation, the parties may give the mediator substantial control over the outcome. See infra notes 102-10 and accompanying text (discussing evaluative and facilitative approaches to mediation); see also Bernard Mayer, The Dynamics of Power in Mediation and Negotiation, 16 MEDIATION Q. 75 (1998) (arguing that the mediator's power over the process derives from the parties' consent).
132. For a discussion of the meaning of human dignity values, see Joseph Goldstein, For Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain, 84 YALE L.J. 683, 686 (1975).
133. Of course, savvy parties represented by mediation advocates might insist that mediators meet privately with parties in a caucus in order to guard against such vulnerability. For a further discussion of the caucus, see infra notes 146-50 and accompanying text. It is not just emotional interests, however, that may be at risk. One author has observed that in the business setting, parties are not comfortable with full disclosure of internal business information. "Full disclosure is inconsistent with maintaining a competitive advantage over one's rival. In negotiation, information is a form of power: the greater the information disparity the greater advantage . . . . Most trial attorneys will not encourage their clients to participate in mediation if full disclosure is required." Samuel J. Imperati, Mediator Practice Models: The Intersection of Ethics and Stylistic Practices in Mediation, 33 WILLAMETTE L. REV. 703, 713 (1997).
134. Bob Helm, Mediators'Duties, Informed Consent, and the Hatfields Versus the McCoys, 21 MEDIATION Q. 65, 73 (1988) (claiming that mediators fail to disclose fully about the limits of confidentiality).
135. See Maria R. Volpe & Charles Bahn, Resistance to Mediation: Understanding and Handling It, 13 NEGOTIATION J. 297 (1987) (arguing that fear of the unknown and lack of information creates resistance to mediation).
136. Substantial power imbalances should be included in this category.
137. Before parties make a final decision to enter into the mediation process, mediators should inform them that they will make such disclosures. See infra notes 240-44 and accompanying text (discussing baseline levels of disclosure for mediators).
138. It differs, therefore, from the first three aspects of the human dignity value that pertain to the decision to enter into the mediation process.
139. See Strauss, supra note 48, at 336-39.
140. See James H. Stark, The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, from an Evaluative Lawyer-Mediator, 38 S. TEX. L. REV. 769, 795 (1997) ("[S]ettlements that are achieved by means of withholding information from litigants face the risk of collateral attack if the parties later find out there was additional information they should have had when they settled their case.").
141. See Guthrie & Levin, supra note 1; NANCY ROGERS & CRAIG A. MCEWEN, MEDIATION: LAW, POLICY, AND PRACTICE § 4:04 (2d ed. 1994).
142. Cf. Craig A. McEwen & Richard J. Maiman, Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 LAW & Soc. REV. 11, 47 (1984) ("Consent enlists a sense of personal obligation and honor in support of compliance, and consensual processes are more open than command to the establishment of reciprocal obligations and of detailed plans for carrying out the terms of an agreement.").
143. Particularly in court-connected mediation, this can save the courts substantial time in responding to challenges to agreements. See infra notes 151-74 and accompanying text.
144. Lawyers, particularly in business disputes, are unwilling to settle without a sufficient factual basis. Professor Nancy Rogers quotes a nonsettling attorney: " 'I have never settled a case in mediation. This is so because these [business] cases involve a great deal of discovery and once discovery is complete people just want to go to trial. People are unwilling to resolve cases without all the facts and thus extensive discovery.' " Nancy H. Rogers & Craig A. McEwen, Employing the Law To Increase the Use of Mediation and To Encourage Direct and Early Negotiations, 13 OHIO ST. J. ON DISP. RESOL. 831, 842 (1998). The Rand Report shows mediation is less successful where discovery is not sufficient. See RAND REPORT, supra note 1, at 45-46; see also Imperati, supra note 73, at 713.
145. See, e.g., Alvarez v. Reiser, 958 S.W.2d 232 (Tex. Ct. App. 1997). The facts in Alvarez are troubling. After the parties mediated a divorce case, the wife discovered that her husband had misrepresented the value of his retirement and 401K accounts in the inventory he filed before mediation. She moved to "re-mediate" the funds issue but the presiding judge denied her motion and called the case to trial. At trial the wife stated that she did not consent to or was not in agreement with the mediated settlement. She testified that she believed the agreement was unfair because it did not include additional community funds. She also stated that she entered into the settlement agreement only after twelve and one-half hours of "complete duress." Even though the trial court acknowledged that the mediation at some point became "Chinese torture," and that "the agreement may not be fair to anyone," it entered a consent judgment. Brief for Petitioner at 5, Alvarez v. Reiser, 958 S.W.2d 232 (Tex. App. Ct. 1997) (No. 11-96-206-CV) (petition for review denied June 5, 1998).
146. See, e.g., Jamie Henikoff & Michael Moffitt, Remodeling the Model Standards of Conduct for Mediators, 2 HARV. NEGOTIATION L. REV. 87 (1997); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53; ROGERS & MCEWEN, supra note 81, §§ 6, 10, 11.
147. See, e.g., Jamie Henikoff & Michael Moffitt, Remodeling the Model Standards of Conduct for Mediators, 2 HARV. NEGOTIATION L. REV. 87 (1997); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53; ROGERS & MCEWEN, supra note 81, §§ 6, 10, 11.
148. This is popularly known as the "evaluative versus facilitative" debate. See John Feerick et al., Standards of Professional Conduct in Alternative Dispute Resolution, 1995 J. DISP. RESOL. 95, 106-08.
149. Professors Nancy Rogers and Craig McEwen include informed consent as an aspect of the continuing fairness debate in mediation. See ROGERS & MCEWEN, supra note 81, § 2:02; Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317 (1995); Stulberg, supra note 57.
150. See, e.g., Richard E. Crouch, Divorce Mediation and Legal Ethics, 16 FAM. L.Q. 219, 237-38 (1982) ("Principally, the problem seems to be that of obtaining consent that is sufficiently informed. For an informed consent, the attorney has to have made full disclosure of the important facts and considerations, and the person waiving the right of independent representation has to understand all of these.").
151. See, e.g., Andrew S. Morrison, Is Divorce Mediation the Practice of Law? A Matter of Perspective, 75 CAL. L. REV. 1093 (1987); Sandra E. Purnell, The Attorney As Mediator - Inherent Conflict of Interest?, 32 UCLA L. REV. 986 (1985); Wendy Woods, Model Rule 2.2 and Divorce Mediation: Ethics Guidelines or
152. See, e.g., Andrew S. Morrison, Is Divorce Mediation the Practice of Law? A Matter of Perspective, 75 CAL. L. REV. 1093 (1987); Sandra E. Purnell, The Attorney As Mediator - Inherent Conflict of Interest?, 32 UCLA L. REV. 986 (1985); Wendy Woods, Model Rule 2.2 and Divorce Mediation: Ethics Guidelines or Ethics Gap?, 65 WASH. U. L.Q. 233 (1987). Many of these questions arose in response to a model of divorce mediation proposed by O. J. Coogler, that involved the use of an impartial advisory attorney. See O. J. COOGLER, STRUCTURED MEDIATION IN DIVORCE SETTLEMENTS 85-92 (1978).
153. See, e.g., Andrew S. Morrison, Is Divorce Mediation the Practice of Law? A Matter of Perspective, 75 CAL. L. REV. 1093 (1987); Sandra E. Purnell, The Attorney As Mediator - Inherent Conflict of Interest?, 32 UCLA L. REV. 986 (1985); Wendy Woods, Model Rule 2.2 and Divorce Mediation: Ethics Guidelines or Ethics Gap?, 65 WASH. U. L.Q. 233 (1987). Many of these questions arose in response to a model of divorce mediation proposed by O. J. Coogler, that involved the use of an impartial advisory attorney. See O. J. COOGLER, STRUCTURED MEDIATION IN DIVORCE SETTLEMENTS 85-92 (1978).
154. See, e.g., Andrew S. Morrison, Is Divorce Mediation the Practice of Law? A Matter of Perspective, 75 CAL. L. REV. 1093 (1987); Sandra E. Purnell, The Attorney As Mediator - Inherent Conflict of Interest?, 32 UCLA L. REV. 986 (1985); Wendy Woods, Model Rule 2.2 and Divorce Mediation: Ethics Guidelines or Ethics Gap?, 65 WASH. U. L.Q. 233 (1987). Many of these questions arose in response to a model of divorce mediation proposed by O. J. Coogler, that involved the use of an impartial advisory attorney. See O. J. COOGLER, STRUCTURED MEDIATION IN DIVORCE SETTLEMENTS 85-92 (1978).
155. See ROGERS & MCEWEN, supra note 81, § 10.
156. For a discussion of the the early bar association ethics opinions, see Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329 (1984); Linda Silberman, Professional Responsibility Problems in Divorce Mediation, 7 FAM. L. REP. 4001 (1981). For an analysis of more recent bar association ethics opinions, see Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213 (1993).
157. For a discussion of the the early bar association ethics opinions, see Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329 (1984); Linda Silberman, Professional Responsibility Problems in Divorce Mediation, 7 FAM. L. REP. 4001 (1981). For an analysis of more recent bar association ethics opinions, see Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213 (1993).
158. For a discussion of the the early bar association ethics opinions, see Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329 (1984); Linda Silberman, Professional Responsibility Problems in Divorce Mediation, 7 FAM. L. REP. 4001 (1981). For an analysis of more recent bar association ethics opinions, see Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213 (1993).
159. See, e.g., Boston Bar Ass'n Comm'n of Professional Responsibility, Op. 78-1 (1978); Ass'n of the Bar of the City of New York Comm'n of Professional & Judicial Ethics, Op. 80-23 (1980); Connecticut Bar Ass'n, Formal Op. 35 (1982).
160. See Ass'n of the Bar of the City of New York Comm'n of Professional & Judicial Ethics, Op. 80-23 (1980). The opinion listed the following seven guidelines that should be followed before lawyers could participate in divorce mediation and noted that "underlying these guidelines is the requirement that the lawyers' participation in the mediation process be conditioned on informed consent by the parties." Id. at II. First, the lawyer must clearly and fully advise the parties of the limitations on his or her role, and specifically, of the fact that the lawyer represents neither party and that accordingly, they should not look to the lawyer to protect their individual interests or to keep confidences of one party from the other. Second, the lawyer must fully and clearly explain the risks of proceeding without separate legal counsel and thereafter proceed only with the consent of the parties and only if the lawyer is satisfied that the parties understand the risks and understand the significance of the fact that the lawyer represents neither party. Third, a lawyer may participate with mental health professionals in those aspects of mediation which do not require the exercise of professional legal judgment and involve the same kind of mediation activities permissible to lay mediators. Fourth, lawyers may provide impartial legal advice and assist in reducing the parties' agreement to writing only where the lawyer fully explains all pertinent considerations and alternatives and the consequences to each party of choosing the resolution agreed upon. Fifth, the lawyer may give legal advice only to both parties in the presence of the other. Sixth, the lawyer must advise the parties of the advantages of seeking independent legal counsel before executing any agreement drafted by the lawyer. Seventh, the lawyer may not represent either of the parties in any subsequent legal proceedings relating to the divorce.
161. Id.
162. See, e.g., Crouch, supra note 89. Crouch proposed a preliminary written contract in which "[a]ll the warnings, waivers, and informed consents contemplated by this unique form of divorce negotiation should be embodied in the contract . . . ." Id. at 248.
163. These standards were adopted by the House of Delegates of the American Bar Association in August 1984 [hereinafter ABA STANDARDS OF PRACTICE]. The standards are reprinted in GOLDBERG ET AL., supra note 1, at 469.
164. See id. at Standard I.
165. See id. at Standard IV.
166. See id. at Standard VI.
167. Professor Judith Maute, concerned with mediator accountability, proposed a rule detailing the neutral lawyers' obligations: "By undertaking to mediate a dispute capable of legal resolution when the parties are not independently represented, the lawyer mediator assumes a responsibility to tell the parties enough about the applicable law and its uncertainties so their settlement decision is adequately informed." Maute, supra note 57, at 366. See also Judith L. Maute, Public Values and Private Justice: A Case for Mediator Accountability, 4 GEO. J. LEGAL ETHICS 503 (1991) (proposing that the ABA adopt Model Rule 2.4 to govern the conduct of lawyers who serve as mediators). Professor Leonard Riskin developed a model for neutral lawyering in mediation, arguing that lawyers should aim for an agreement that does not violate minimum standards of fairness. Lawyers would be permitted to give legal information in this model. See Riskin, supra note 92.
168. I must say that I agree with those commentators who recognize that the debate should not be framed in this way at all but that the question should be more related to when facilitation and evaluation are appropriate. See, e.g., Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949 (1997).
169. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
170. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
171. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
172. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
173. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
174. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
175. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
176. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
177. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
178. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
179. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
180. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
181. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
182. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
183. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
184. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
185. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
186. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
187. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
188. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
189. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It Wrong?, 33 WILLAMETTE L. REV. 649, 701 (1997); Leonard L. Riskin, Mediation Quandaries, 24 FLA ST. U. L. REV. 1007 (1997); Stark, supra note 80; Stempel, supra note 102; David U. Strawn, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 3 JUST. RESOL. 1 (1998); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997); Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, 82 MARQ. L. REV. 155 (1998); Ellen A. Waldman, The Role of Legal Norms in Divorce Mediation: An Argument for Inclusion, 1 VA. J. Soc. POL'Y & L. 87 (1993) [hereinafter Waldman, Legal Norms]; DONALD T. Weckstein, In Praise of Party Empowerment - and of Mediator Activism, 33 WILLAMETTE L. REV. 501 (1997).
190. There is extensive literature on this question. See, e.g., Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 ALTERNATIVES TO THE HIGH COST OF LITIGATION 62 (1996); James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997); John Bickerman, Evaluative Mediator Responds, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 70 (1996); James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1; Cris M. Currie, Wanted: A Theoretical Construct for Mediation Practice, 53 DISP. RESOL. J. 70 (1998); Dwight Golann & Marjorie Corman Aaron, Managing the Merits: The Use (and Misuse) of Evaluation in Mediation,. DISP. RESOL. J. (1997); Imperati, supra note 73; Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, in 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (1996) [hereinafter Kovach & Love, Evaluative Mediation]; Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin's Grid, 3 HARV. NEGOTIATION L. REV. 71 (1998) [hereinafter Kovach & Love, Mapping Mediation] (arguing against evaluation); John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 856-79 (1997); Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997); Jonathan Marks, Evaluative Mediation - Oxymoron or Essential Tool?, AM. LAW., May 1996, at 48A; Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. 669 (1997); Barbara A. Phillips, Mediation: Did We Get It
191. For a helpful understanding of evaluation as a continuum of directive behaviors, see Margaret Shaw, Evaluation Continuum, Prepared for CPR Ethics Commission, May 6-7, 1996. Inquiries submitted to Florida's Mediator Qualifications Panel exemplify the ethical dilemmas inherent in evaluative mediation. See, e.g., MQAP Op. 95-005C (on file with author) (Is a mediator who becomes aware that a plaintiff in a wrongful death action is making no claim for loss of consortium, which claim would appear to the mediator to be appropriate under the circumstances, bound to inform that party of this matter? In this case, the ethics panel held that it was an ethical violation for the mediator to give legal advice to a party.); MQAP Op. 95-002D (While it is known that a mediator should not advise, can a question be asked even if the framing of the question tends to advise or inform one or both of the parties involved? The panel responded: It is improper for a mediator to provide legal advice by any method within the scope of a mediation, whether such advice by statement, question or any other form of communication.). For a thoughtful discussion of the lines mediators draw between proper and improper evaluation, see Stark, supra note 80, at 784-92.
192. In an earlier article, I adopted this position. See Nolan-Haley, Court Mediation, supra note 16; see also Stempel, supra note 102 (endorsing a flexible mediation model that permits judicious use of evaluation); Moberly, supra note 103; Stark, supra note 80 (stating that the principal purpose of evaluation in mediation is to promote the parties' self-determination through informed consent); James H. Stark, Preliminary Reflections on the Establishment of a Mediation Clinic, 2 CLINICAL L. REV. 457, 487 (1996). Stark wrote: When settling their disputes, disputants must be permitted to invoke legal norms if they choose to, and the mediator must take steps to ensure that the parties' choices are knowing and informed. In my view, any threat to the appearance of neutrality and impartiality is a necessary price that mediators must pay for party empowerment and informed consent. Id. See also Waldman, Legal Norms, supra note 103. Gerard Clay argues that parties need evaluation in order to make informed decisions about their rights and interests. See Alfini & Clay, supra note 65. Other commentators observe that evaluation happens, see Carrie Menkel-Meadow, Is Mediation the Practice of Law?, 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 57, 61 (1996), or think about it as a contractual issue, see Marjorie Corman Aaron, Evaluation in Mediation, in DWIGHT GOLANN, MEDIATING LEGAL DISPUTES: EFFECTIVE STRATEGIES FOR LAWYERS AND MEDIATORS 267-305 (1996) (discussing conditions that are appropriate for evaluation in mediation).
193. See Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 HASTINGS L.J. 703, 707 (1997) ("Heightened attention to the role of social norms in mediation is necessary to allow mediators to adequately explain their methodologies and to allow clients to supply informed consent to mediator interventions.").
194. See Clark Freshman, Privatizing Same-Sex "Marriage" Through Alternate Dispute Resolution: Community-Enhancing Versus Community-Enabling Mediation, 44 UCLA L. REV. 1687 (1997).
195. E.g., Imperati, supra note 73, at 711 (offering nineteen decision points that mediators should consider discussing with parties prior to mediation); Lande, supra note 103; Michael Moffitt, Casting Light on the Black Box of Mediation: Should Mediators Make Their Conduct More Transparent?, 13 OHIO ST. J. ON DISP. RESOL. 1 (1997) (arguing that a mediator should share information with the parties about the actions she is taking and the impact she intends to achieve).
196. Robert Benjamin, What is Mediation Anyway? Ethical Issues, Policy Issues and the Future of the Profession, NIDR NEWS, July/Aug. 1996, at 9; Currie, supra note 103, at 74 (arguing that evaluation techniques should "not be included on the list of ethical mediation techniques"); Kovach & Love, Mapping Mediation, supra note 103; Kovach & Love, Evaluative Mediation, supra note 103; Stark, supra note 80, at 775 n.11 (quoting symposium comments of Dean John Feerick) ("[S] elf-determination is the most basic principle of mediation. Facilitation follows from that . . . . Evaluation weakens the facilitative process."); Robert A. Baruch Bush, Efficiency and Protection, or Empowerment and Recognition?: The Mediator's Role and Ethical Standards in Mediation, 41 FLA. L. REV. 253, 260-61 (1989) (characterizing the protection of rights conception of mediation as concerned with ensuring informed consent); Stulberg, supra note 57 (arguing that a uniform mediation statute should not contain an evaluative model). The Standards of Conduct for Mediators endorse a facilitative model. See JOINT STANDARDS OF CONDUCT, supra note 7, Standard I.
197. Robert Benjamin, What is Mediation Anyway? Ethical Issues, Policy Issues and the Future of the Profession, NIDR NEWS, July/Aug. 1996, at 9; Currie, supra note 103, at 74 (arguing that evaluation techniques should "not be included on the list of ethical mediation techniques"); Kovach & Love, Mapping Mediation, supra note 103; Kovach & Love, Evaluative Mediation, supra note 103; Stark, supra note 80, at 775 n.11 (quoting symposium comments of Dean John Feerick) ("[S] elf-determination is the most basic principle of mediation. Facilitation follows from that . . . . Evaluation weakens the facilitative process."); Robert A. Baruch Bush, Efficiency and Protection, or Empowerment and Recognition?: The Mediator's Role and Ethical Standards in Mediation, 41 FLA. L. REV. 253, 260-61 (1989) (characterizing the protection of rights conception of mediation as concerned with ensuring informed consent); Stulberg, supra note 57 (arguing that a uniform mediation statute should not contain an evaluative model). The Standards of Conduct for Mediators endorse a facilitative model. See JOINT STANDARDS OF CONDUCT, supra note 7, Standard I.
198. Robert Benjamin, What is Mediation Anyway? Ethical Issues, Policy Issues and the Future of the Profession, NIDR NEWS, July/Aug. 1996, at 9; Currie, supra note 103, at 74 (arguing that evaluation techniques should "not be included on the list of ethical mediation techniques"); Kovach & Love, Mapping Mediation, supra note 103; Kovach & Love, Evaluative Mediation, supra note 103; Stark, supra note 80, at 775 n.11 (quoting symposium comments of Dean John Feerick) ("[S] elf-determination is the most basic principle of mediation. Facilitation follows from that . . . . Evaluation weakens the facilitative process."); Robert A. Baruch Bush, Efficiency and Protection, or Empowerment and Recognition?: The Mediator's Role and Ethical Standards in Mediation, 41 FLA. L. REV. 253, 260-61 (1989) (characterizing the protection of rights conception of mediation as concerned with ensuring informed consent); Stulberg, supra note 57 (arguing that a uniform mediation statute should not contain an evaluative model). The Standards of Conduct for Mediators endorse a facilitative model. See JOINT STANDARDS OF CONDUCT, supra note 7, Standard I.
199. Love, supra note 103, at 941.
200. Bush, supra note 13, at 13.
201. See id.
202. See Menkel-Meadow, supra note 4, at 2692 nn.129-38.
203. E.g., James Boskey, The ProerHole of the Mediator: Rational Assessment, Not Pressure, 10 NEGOTIATION J. 367 (1994).
204. Professor John Lande's examination of the factors affecting the quality of consent thoughtfully considers some of the internal and external influences on the consent process. See Lande, supra note 103. Professor Lande proposes seven indicators to judge the quality of consent: (1) explicit identification of the principles, goals, and interests, (2) explicit identification of plausible options for satisfying these interests, (3) the principals' explicit choice of options for consideration, (4) careful consideration of [these] options, (5) mediators' restraint in pressuring principals to accept particular [substantive] options, (6) limitation oh use of time pressure, [and] (7) confirmation of [principals'] consent [to selected options.] Id. at 869-78. See also Carla E. Munroe, Court-Based Mediation in Family Law Disputes: An Effectiveness Rating and Recommendations for Change, 13 PROB. L.J. 107 (1996) (arguing that "knowing consent" be defined in law because it is an essential element of procedural due process).
205. See generally ROGERS & MCEWEN, supra note 81, ch. 12. Throughout the balance of this article, I will refer to ethics codes, standards, and court rules as "regulations."
206. For some notable exceptions, see Appendix A. With respect to private standards, see THE OREGON MEDIATION ASSOCIATION, STANDARDS OF MEDIATION PRACTICE (1993) (Responsibilities to the Parties, Section 2, requires the "informed consent" of the parties "prior to the beginning of substantive negotiations . . . ."). These standards are discussed more fully in Imperati, supra note 73. In some states, informed consent is explicitly linked to self-determination. See, e.g., GA. ALTERNATIVE DISP. R. APP. CT. ETHICAL STANDARDS FOR MEDIATORS (1995); ALA. CODE OF ETHICS FOR MEDIATORS STANDARD 4 (1996). See generally Deborah A. Ledgerwood, Family Mediation in St. Louis County: Steeled Against the Critics?, 52 J. Mo. B. 351, 353 (1996) (finding that mediators have a duty to "assure informed consent").
207. E.g., GA. ALTERNATIVE DISP. RESOL. R., APP. C, ETHICAL STANDARDS FOR MEDIATORS, Standard I (1995) (requiring an explanation of nine items of information in disclosure); FLA. R. CERTIFIED & CT. APPOINTED MEDIATORS 10.020 (d) (5) (detailed disclosure); The CENTER FOR DISPUTE SETTLEMENT, INSTITUTE OF JUDICIAL ADMINISTRATION, NATIONAL STANDARDS FOR COURT-CONNECTED MEDIATION, Rule 3.2(b) (1992) [hereinafter NATIONAL STANDARDS] list ten items of process information which courts should provide to parties and their attorneys: Information on process: (1) the nature and purpose of mediation; (2) confidentiality of process and records; (3) role of the parties and/or attorneys in mediation; (4) role of the mediator, including lack of authority to impose a solution; (5) voluntary acceptance of any resolution or agreement; (6) the advantages and disadvantages of participating in determining solutions; (7) enforcement of agreements; (8) availability of formal adjudication if a formal resolution or agreement is not achieved and implemented; (9) the way in which the legal and mediation processes interact, including permissible communications between mediators and the court; (10) the advantages and disadvantages of a lack of formal record. Id.
208. E.g., Mo. R. CIV. P. 88.06 (a) (3) (West 1997) (stating that mediators should define and describe the process of mediation); N.C. R. OF S. CT. FOR THE DISP. RESOL. COMM'N, STANDARDS OF PROF. CONDUCT, Standard IV(A) (West 1997); STANDARDS FOR PRIVATE AND PUB. MEDIATORS IN THE STATE OF HAW. (adopted by the Hawaii Supreme Court on April 22, 1986; standards are aspirational) ("Before beginning mediation and throughout the process, mediators shall educate parties about the mediation process, distinguish mediation from other procedures, explain the respective responsibilities of the mediator and the parties, affirm the party's willingness to participate in such a process, and fully explain any applicable policies, procedures, and guidelines.").
209. See, e.g., IDAHO R. CIV. P. 16(j) (19), MEDIATION OF CHILD CUSTODY AND VISITATION DISP., R. 7(a) (I) (West 1997) (mediator must describe the difference between mediation and other forms of conflict resolution including therapy and counseling); N.C. R. of Ct. 6(B) (b) (West 1997) (implementing mediated settlement conferences in superior court civil actions); S.C. R. OF CT., ALTERNATIVE DISP. RESOL., CIR. CT. MEDIATION 7(b) (3) (West 1997).
210. See, e.g., ALA. CODE OF ETHICS FOR MEDIATORS, Standard V(B) (West 1997); FLA. STAT. ANN. MEDIATOR CONDUCT R. 10.070 (b) (West 1997); IND. ALTERNATIVE DISP. RESOL. R. 7.3(6); N.J. Civ. R. 301.1 (g) (2) (B) (West 1997).
211. E.g., IOWA CODE ANN. § 654A.1 (West 1995) (farmer-lender mediation); WYO. STAT. ANN. § ll-41-105(a), (b) (Michie 1997) (farmer-lender mediation). However, some ethical standards explicitly prohibit mediators from giving legal advice. See Moore, supra note 10, at 303 ("At no time shall a mediator offer legal advice to parties in dispute.") (citing CODE OF PROFESSIONAL RESPONSIBILITY FOR MEDIATORS). Others do not permit legal advice unless a party's attorney is present. See ALA. CODE OF ETHICS FOR MEDIATORS, Standard 7(d) (1996) ("A mediator may discuss possible outcomes of a case, but a mediator may not offer a personal or professional opinion regarding the likelihood of any specific outcome except in the presence of the attorney for the party to whom the opinion is given.").
212. See IDAHO R. CIV. P. 16(j) (7) (a) ("The mediator has a duty to define and describe for the parties the process of mediation and its cost during the initial conference before the mediation conference begins . . . ."); MO. CT. R., S. CT. R. OF CIV. P. 88.06(a) (1) (relating to legal separation and child support); N.C. R. FOR DISP. RESOL. COMM'N., STANDARDS OF PROF. CONDUCT, Standard IV.A(6); N.C. SUPER. CT. R. 6B(c); S.C. R. OF CT., ALTERNATIVE DISP. RESOL., CIR. CT. MEDIATION, R. 7(b) (9). See also STANDARDS OF CONDUCT, supra note 7, Standard VII.
213. E.g., MASS. S. CT. UNIF. R. ON DISP. RESOL. 6(I) (LEXIS 1998); NATIONAL STANDARDS, supra note 118, Rule 11.2.
214. E.g., ALA. CODE OF ETHICS FOR MEDIATORS, Standard 3(a) (5) (1996). Standard 3 (a) (5) provides: [I]n the event a party is not represented by an attorney, the mediator should explain: (1) That the parties are free to consult legal counsel at any time and are encouraged to have any settlement agreement resulting from the mediation process reviewed by counsel before they sign it; and, (2) That a mediated agreement, once signed, is binding and can have a significant effect upon the rights of the parties and upon the status of the case. Iowa mediation rules require that mediators give the following warning to unrepresented parties: WARNING Without review and advice by your own independent legal counsel, you may be giving up legal rights to which you are entitled, or running certain risks of which you are not aware, with respect to the following types of issues: (1) Real and personal property division. (2) Income tax consequences resulting from an agreement regarding division of property, alimony, or child support. (3) Accurate documenting and recording of conveyances and proper title to real estate or personal property. (4) Alimony. (5) Child custody, visitation and support. (6) Court costs and attorney fees. (7) Subsequent modifications and substantial changes in circumstances. (8) Court disapproval of any submitted agreement which is contrary to the parties', or an affected child's legal rights. The above is not a complete list of legal rights and is not meant to be. There may be other considerations unique to the circumstances of your individual case. You should consult a lawyer for advice. Id. See also Iowa R. GOVERNING STANDARDS OF PRAC. FOR LAW. MEDIATORS IN FAM. DISP. 6 (effective February 1987); DEL. CT. R. Civ. PRO. 16.2(I) (1996); NATIONAL STANDARDS, supra note 118, Rule 1.4 (urging courts to provide that "pro se litigants make informed choices about mediation").
215. E.g., Michigan, letter from Douglas A. Van Epps, J.D., Director of Community Dispute Resolution Program (Apr. 4, 1998) (form on file with author); Nebraska, letter from Kathleen Severns, Director, Office of Dispute Resolution (Apr. 1998) (form on file with author); Oklahoma, letter from Sue Darst Täte, ADR System Dir., (Apr. 29, 1998) (consent form on file with the author); Nevada, e-mail from Phil Bushard, D.P.A. Mediator, Family Mediation Program, Second Judicial District Court, Nevada (parties read and sign groundrules for mediation) (copy on file with author). For a sample of an agreement to mediate in community context, see Thomas Stipanowich, The Quiet Revolution Comes to Kentucky: A Case Study in Community Mediation, 81 KY. L.J. 855 (1993).
216. In Georgia, parties sign a waiver statement. Telephone Interview with Ansley Boyd Barton, Director of the Georgia Office of Dispute Resolution (April 1998).
217. See, e.g., DEL. R. OF CT., SUPER. CT. R. OF CIV. P., Interim Rule 16.2, VOLUNTARY MEDIATION (d) (1996). Regarding written consent to mediation, the rule state: Prior to the commencement of the mediation conference, the disputing parties shall enter into a written consent which specifies the methods by which the parties shall attempt to resolve the issues in dispute. The written consent form shall include the following: (1) The rights and obligations of parties to the mediation; and (2) The confidentiality of the conference. The written consent shall be signed by the parties, their counsel, and the mediator. Id.
218. See, e.g., MINN. STAT. ANN. § 572.35(1) (West 1988) ("A mediated settlement agreement is not binding unless it contains a provision stating that it is binding and a provision stating substantially that the parties were advised in writing that (a) the mediator has no duty to protect their interests or provide them with information about their legal rights . . . .").
219. E.g., Kansas, KAN. SUP. CT. R. OF MEDIATION 901(b) (1); New Jersey, Mercer County Custody Mediation Program (form on file with author); New Mexico, letter from Victoria B. Garcia, Esq., Director, Court Alternatives (June 16, 1998) (form on file with author). See Philip J. Ritter, ADR: What About Confidentiality?, 51 TEX. B.J. 26, 27 (1980) ("Most [ADR] centers . . . require that each party sign an agreement or waiver. These agreements usually provide that disputants will protect the confidentiality of the [ADR] process . . . .").
220. E.g., FLA. R. CIV. P. 1.730(b).
221. E.g., IND. R. ALT. DISP. RESOL. 7.5(a); TENN. SUP. CT. R. 31, APP. A(5) (b); Miss. R. OF CT., PILOT MEDIATION PROGRAM IN CH., CIR., AND COUNTY CTS., § 9(b) (West 1997); UTAH R. OF CT.-ANNEXED ALTERNATIVE DISP. RESOL. 104, CODE OF ETHICS FOR ADR PROVIDERS, Canon VIII(a) (Process and Terms of Settlement in Mediation) (West 1998). See also MOORE, supra note 10, at 300 ("At no time should a mediator coerce the parties into an agreement.") (citing CODE OF PROFESSIONAL CONDUCT FOR MEDIATORS).
222. See, e.g., ME. REV. STAT. ANN. tit. 19 §§ 214, 518 (West 1997); ME. CODE PROF. RESP. 3.4 (H) (1); KAN. STAT. ANN. § 72-5430(c) (4) (1980); WASH. REV. CODE § 59.20-080(2). See generally ROGERS & MCEWEN, supra note 81, § 7:04; Richard D. English, Annotation, Alternative Dispute Resolution: Sanctions for Failure to Participate in Good Faith in, or Comply with Agreement Made in Mediation, 43 A.L.R. 5th 545 (1996). The National Standards for Court-Connected Mediation Programs caution that courts may require parties to participate in mediation only when "they provide clear and complete information about the precise process and procedures being required." This includes information that "they are not required to make offers and concessions or to settle." NATIONAL STANDARDS, supra note 118, R. 11.2.
223. See, e.g., COLO. REV. STAT. § 13-22-306 (1991). See generally ROGERS & MCEWEN, supra note 81, at § 11:03.
224. See ROGERS & MCEWEN, supra note 81, at § 11:03.
225. See, e.g, Ledgerwood, supra note 117, at 353 (reporting that in the St. Louis County Program, noncompliance with the requirements, including duty to assure informed consent, "may result in removal from the court approved list of mediators."). The National Standards for Court-Connected Mediation Programs recommend continued monitoring with possible removal from mediation roster. See NATIONAL STANDARDS, supra note 118, Rule 6.6.
226. See, e.g., VA. COMPLAINT PROC. FOR MEDIATORS CERTIFIED TO RECEIVE CT.-REFERRED CASES (March 1997) (copy on file with the author). See generally ROGERS & MCEWEN, supra note 81, at § 11:04.
227. See ALA. CODE § 24-8-12(a) (1992) (disclosure of information from conciliation hearings in housing disputes is a misdemeanor); 42 U.S.C § 2000g-2 (1994) (stating that in mediation conducted under the auspices of the U.S. Community Services Mediation, unlawful disclosure of mediation information results in criminal liability).
228. The Minnesota Civil Mediation Act permits the imposition of criminal liability on a mediator for failing to provide parties with a written statement of "educational background and relevant training and experience in the field." MINN. STAT. §572. 37 (1996). A Virginia statute permits a mediated agreement to be vacated where specific disclosures were not made. See VA. CODE ANN. § 8.01-576.12 (Michie 1993) (permitting courts to vacate mediated agreement where neutral failed to inform parties in writing at the commencement of the mediation process that: "(i) the neutral does not provide legal advice, (ii) any mediated agreement will affect the legal rights of the parties, (iii) each party to the mediation has the opportunity to consult with independent legal counsel at any time and is encouraged to do so, and (iv) each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement or should waive his opportunity to do so").
229. Telephone Interview with Arlene Richardson, Assistant Director of ADR programs in Alabama (June 2, 1998); Virginia has a brochure, Mediation: A Consumer Guide, that is distributed to parties (copy on file with the author).
230. The procedures used in Utah represent a good example of premediation disclosure through the use of an ADR video. Utah has a voluntary court-annexed alternative dispute resolution program. Civil cases in specified districts courts are automatically referred to the ADR program. When a complaint is filed, the court clerk notifies the parties of the referral and they may then choose from the available options, one of which is mediation. The court brochure states that parties are asked to "make an informed choice." To assist in this decisionmaking process, parties and their counsel are required to watch a short video entitled, ADR: A Different Choice. The film explains mediation and nonbinding arbitration. Parties who choose not to pursue ADR after watching the video sign a statement that they have reviewed the videotape and discussed ADR with their counsel and have decided to defer use of ADR (copy of brochure on file with author).
231. See Munroe, supra note 115.
232. See Charlene E. Depner et al., Client Evaluations of Mediation Services: The Impact of Case Characteristics and Mediation Service Models, 32 FAM. & CONCILIATION CTS. REV. 306, 310 (1994) (reporting that parties in mandatory court-connected custody mediation program believed that procedures were described clearly).
233. Scholars refer to this process as "selective facilitation." David Greatbatch & Robert Dingwall, Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators, 23 LAW & Soc. REV. 613 (1989). Professor James Stark notes that this is similar to the problem of "pigeonholing" in legal interviewing: The mediator leads die discussion in certain directions but not others, facilitates the examination of particular subjects but not others - a consequence of poor listening or deficient imagination or some bias, perhaps unconscious, on the mediator's part. . . . In such cases, the mediator's selective facilitation creates a risk not just of inefficient service, but of biased, weak and deficient agreements. Stark, supra note 105, at 481.
234. See Angela Garcia, The Problematics of Representation in Community Mediation Hearings: Implications for Mediation Practice, 22 J. Soc. & Soc. WELFARE 23, 26 (1995). Garcia describes an empirical study of three ways in which mediators represent what parties say: first, mediators may represent a disputant by rephrasing or repeating; second, they make statements consistent with the disputants' position but go beyond rephrasing; and third, mediators "may create their own arguments;" thus, mediators have a "subtle influence over the outcome of the process." See also Christopher Honeyman, Patterns of Bias in Mediation, 1985 Mo. J. DISP. RESOL. 141.
235. See Angela Garcia, The Problematics of Representation in Community Mediation Hearings: Implications for Mediation Practice, 22 J. Soc. & Soc. WELFARE 23, 26 (1995). Garcia describes an empirical study of three ways in which mediators represent what parties say: first, mediators may represent a disputant by rephrasing or repeating; second, they make statements consistent with the disputants' position but go beyond rephrasing; and third, mediators "may create their own arguments;" thus, mediators have a "subtle influence over the outcome of the process." See also Christopher Honeyman, Patterns of Bias in Mediation, 1985 Mo. J. DISP. RESOL. 141.
236. A caucus is a private meeting with one of the parties and the mediator. See JOSEPH B. STULBERG, TAKING CHARGE/MANAGING CONFLICT 107-12 (1987). For a discussion of how the caucus presents several opportunities for mediators to engage in deceptive behavior, see John W. Cooley, Mediation Magic: Its Use and Abuse, 29 LOY. U. CHI. L.J. 1 (1997).
237. A caucus is a private meeting with one of the parties and the mediator. See JOSEPH B. STULBERG, TAKING CHARGE/MANAGING CONFLICT 107-12 (1987). For a discussion of how the caucus presents several opportunities for mediators to engage in deceptive behavior, see John W. Cooley, Mediation Magic: Its Use and Abuse, 29 LOY. U. CHI. L.J. 1 (1997).
238. This is true even though many standards caution mediators against simply pushing for settlement. See, e.g., NATIONAL STANDARDS, supra note 118, Rule 11.
239. If mediators conduct the mediation session in joint session, there is less opportunity for mediators to manipulate information.
240. See Stark, supra note 105, at 481 ("Mediators sometimes withhold or manipulate information because it works in achieving settlement.").
241. See Jennifer Gerarda Brown & Ian Ayres, Economic Rationales for Mediation, 80 VA. L. REV. 323, 325-26 (1994) (stating that a critical source of power for mediators is to respond to parties' disparate information); see also Moffitt, supra note 108.
242. Some states specifically provide for the enforcement of agreements reached in mediation. See, e.g, GA. CODE ANN. § 45-19-32 (1997); HAW. REV. STAT. § 378-5(I) (1997); IND. CODE § 22-9-1-6(p) (1997); KY. REV. STAT. ANN § 344.610 (Michie 1997). The extent to which courts should intervene in informed consent cases raises important questions for future examination. First, should court intervention be based on the substance of the mediation with a higher standard of scrutiny applied where important rights are involved? Some states, for example, require court review of divorce mediation agreements. E.g., ME. REV. STAT. ANN. tit. 19, § 752 (West Supp. 1997); Mo. R. CIV. P. 88.06; MONT. CODE ANN. § 40-4-305 (WEST 1997); N.D. CENT. CODE § 14-09.1-07 (1991); OR. REV. STAT. ANN. § 107.765 (1997); WASH. REV. CODE ANN. § 26.09.015 (West 1986 & Supp. 1997); WIS. STAT. ANN. § 767.11(12) (West 1993). Second, should there be a higher standard for review of mediated agreements than for regular settlement contracts?
243. See Cary v. Cary, 894 S.W.2d 111, 112 (Tex. Ct. App. 1995) (court refused to uphold judgment resulting from court-ordered mediation where one party withdrew consent).
244. See Sheng v. Starkey Labs., Inc., 117 F.3d 1081, 1083-84 (8th Cir. 1997) (upholding settlement agreement where parties arrived at settlement unaware that judge handed down summary judgment motion); Davis v. Wickham, 917 S.W.2d 414, 416 (Tex. Ct. App. 1996) (finding mediated child custody agreement enforceable and remanded for trial after one party withdrew consent); Martin v. Black, 909 S.W.2d 192, 194 (Tex. Ct. App. 1995) (reversing judgment enforcing mediated settlement where fact issue existed on one party's intent to be bound and that party requested a jury trial on that fact issue); In re Marriage of Ames, 860 S.W.2d 590, 591 (Tex. Ct. App. 1993) (court upheld mediated divorce settlement despite one party's withdrawal of consent but remanded for inconsistencies with trial court judgment); Snyder-Falkinham v. Stockburger, 457 S.E.2d 36 (Va. 1995) (enforcing settlement of legal malpractice claim where plaintiff objectively manifested intent to settle).
245. A related group of "consent" cases challenges consent on technical or procedural insufficiencies. See Gordon v. Royal Caribbean Cruises, Ltd., 641 So.2d 515 (Fla. Dist. Ct. App. 1994) (holding that settlement agreement reached during mediation was not binding in the absence of one party's signature); Jordan v. Adventist Health System/Sunbelt, 656 So.2d 200 (Fla. Dist. Ct. App. 1995) (enforcing agreement signed by parties but not by lawyers as required by Florida Rules of Civil Procedure), rev. denied, 663 So. 2d 630 (Fla. 1995); Singer v. Singer, 652 So.2d 454 (Fla. Dist. Ct. App. 1995) (enforcing mediated agreement that had been incorporated into the final judgment despite provisions in the agreement for the later preparation of a more formal document), appeal after remand, 706 So.2d 914 (Fla. Dist. Ct. App. 1998); Graves v. Graves, 649 So.2d 284 (Fla. Dist. Ct. App. 1995) (holding that orally announced mediation agreement that was not reduced to writing and filed with the court was not enforceable); Stempel v. Stempel, 633 So.2d 26 (Fla. Dist. Ct. App. 1994) (upholding "bare bones" mediation agreement, supplying missing terms), cause dismissed, 639 So.2d 982 (Fla. 1994); Burckhard v. Del Monte Corp., 56 Cal. Rptr. 2d 569 (Cal. Ct. App. 1996) (reversing decision enforcing settlement agreement signed by attorneys rather than the parties themselves).
246. See ROGERS & MCEWEN, supra note 81, at § 4:13 nn.26-41.
247. See, e.g., Haghighi v. Russian-American Broad. Co., 945 F. Supp. 1233 (D. Minn. 1996) (enforcing mediation settlement agreement that failed to state it was binding despite MINN. STAT. § 572.35), certified question answered by 577 N.W.2d 927 (Minn. 1998).
248. See Murphy v. Padilla, 49 Cal. Rptr. 2d 722 (Cal. Ct. App. 1996) (refusing to enforce oral agreement made by attorneys in mediation).
249. See, e.g., McEnany v. West Delaware County Community Sch. Dist., 844 F. Supp. 523 (N.D. Iowa 1994) (enforcing mediated settlement where plaintiff consented for attorney to enter into settlement on her behalf).
250. See Alvarez v. Reiser, 958 S.W.2d 232 (Tex. Ct. App. 1997) (enforcing mediated settlement agreement where wife tried to withdraw consent because she was unaware of her husband's increase in retirement and 401K plans).
251. See Hur v. City of Mesquite, 893 S.W.2d 227 (Tex. Ct. App. 1995) (involving an agreement based on false information and misrepresentation of authority).
252. See, e.g., McKinlay v. McKinlay, 648 So.2d 806 (Fla. Dist. Ct. App. 1995) (holding that wife who asked court not to enforce mediated settlement agreement based on duress or intimidation could not assert privilege for matters concerning mediation communications to prevent mediator from testifying).
253. See In re Marriage of Banks, 887 S.W.2d 160 (Tex. Ct. App. 1994) (enforcing mediated settlement agreement although wife sought to repudiate divorce mediation agreement claiming inter alia: (1) her attorney did not advise her regarding reimbursement law; (2) she felt she had no right to refuse to sign the settlement agreement; (3) she was induced to sign the agreement by duress or fraud).
254. See Wright v. Brockett, 571 N.Y.S.2d 660 (N.Y. Sup. Ct. 1991) (involving claim by unrepresented tenant that mediator did not inform her of her legal rights).
255. See, e.g., Alvarez, 958 S.W.2d at 232.
256. See Wright, 571 N.Y.S.2d at 662, 664. This case arose under a New York statute which treats mediation agreements as an arbitration award. The Wrights filed suit to have the court order Brockett out of her apartment in their building. They sought enforcement of a mediated agreement, whereby Brockett agreed to vacate the apartment. She subsequently refused to do so, arguing inter alia that (1) she agreed to vacate only because the "situation at the apartment was so unpleasant;" (2) she was not represented by counsel during the mediation; (3) the mediator did not advise her of her rights. The court noted that the parties did not sign a consent to arbitrate and that the form they did sign did not "advise unrepresented parties that their agreement to mediate their dispute would be treated as though it were a legally enforceable arbitration award." The court was troubled by the agreement because it was unclear as to whether it had been made under duress and thus denied the motion to enforce the agreement. See also Cafferata v. Peyser, 597 A.2d 1101 (N.J. Super. Ct. App. Div. 1991) (holding that medical malpractice action was not barred by reason of parties' pro se settlement of related claim in mediation-type proceedings); cf. Fischer v. Heck, 675 A.2d 254 (N.J. Super. Ct. Law Div. 1996) (holding that tenant's complaint against landlord for return of security deposit not barred by settlement of related claims).
257. See Banks, 887 S.W.2d at 160.
258. See RESTATEMENT (SECOND) OF AGENCY: LIABILITY BASED UPON AGENCY PRINCIPLES § 140 cmt. a (1958).
259. In Kaiser Foundation Health Plan v. Doe, the court upheld a lawyer-controlled mediation agreement based on agency theory. Kaiser Found. Health Plan v. Doe 903 P.2d 375, 378 (Or. Ct. App. 1995), opinion modified on reconsideration, 908 P.2d 850 (Or. Ct. App. 1996), review denied, 927 P.2d 600 (Or. 1996). One of the problems with some attorneys' behavior in mediation is the lack of a meaningful informed consent doctrine to govern the lawyer-client relationship. Cf. Carr v. Runyan, 89 F.3d 327 (7th Cir. 1996), cert, denied, 117 S. Ct. 962 (1997) (applying agency theory and apparent authority where mother sent daughter to represent her in mediation).
260. E.g., Carr, 89 F.3d at 327 (upholding a settlement agreement when a daughter acted as agent for mother); Kaiser, 903 P.2d at 375; Koval v. Simon-Telelect, Inc., 693 N.E.2d 1299 (Ind. 1998) (holding that attorney has inherent power to settle claim when attorney attends settlement procedure governed by Rules for Alternative Dispute Resolution (ADR) if parties are directed or agree to appear by authorized representatives); Scott v. Randle, 697 N.E.2d 60 (Ind. Ct. App. 1998) (enforcing settlement agreement where attorney had actual and apparent authority to settle but had not obtained consent of each client).
261. See Murphy v. Padilla, 49 Cal. Rptr. 2d 722, 727-28 (Cal. Ct. App. 1996). The court's language is significant: The litigants' direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent. This protects the parties against hasty and improvident settlement agreements by impressing upon them the seriousness and finality of the decision to settle, and minimizes the possibility of conflicting interpretations of the settlement. Id. (quoting Levy v. Superior Ct., 896 P.2d 171, 175 (Cal. 1995)).
262. See ROGERS & MCEWEN, supra note 81.
263. See, e.g., IND. CODE ANN., tit. 34, Rules for ADR, Rule 2.1 (West 1996) (requiring parties to mediate in good faith but not requiring them to settle); see also English, supra note 133; Edward F. Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Participation Should Be Required?, 46 SMU L. REV. 2079 (1993).
264. See Triad Mack Sales & Serv., Inc. v. Clement Bros. Co., 438 S.E.2d 485, 488 (N.C. Ct. App. 1994) (affirming default judgment for failure to attend court-ordered mediated settlement conference).
265. See Decker v. Lindsay, 824 S.W.2d 247, 251 (Tex. Ct. App. 1992) (upholding mandatory referral to an ADR procedure but not mandatory settlement); see also State v. Carter, 658 N.E.2d 618 (Ind. Ct. App. 1995). In this case the court made it clear that there are other goals in mediation besides settlement: Settlement of the whole case is not the only goal of mediation; 'agreement' is another goal, whether it be a factual stipulation, an agreement to forego jury trial in favor of binding arbitration, an identification of issues, a reduction of misunderstandings, a clarification of priorities, or a location of points of agreement. Thus, even where the odds of resolution are slim, mediation can be beneficial because other goals might be achieved. Id. at 623.
266. Cf. Elysa Gordon, Multiculturalism in Medical Decisionmaking: The Notion of Informed Waivers, 23 FORDHAM URB. L.J. 1321 (1996).
267. Some notable exceptions include: N.C. STANDARDS OF PROF'L CONDUCT, N.C. R. OF CT., R. OF THE N.C. S. CT. FOR THE Disp. RESOL. COMM'N, N.C. STANDARDS OF PROF'L CONDUCTT, Standard IV (Adopted May 10, 1996) (providing that the mediator should make reasonable efforts to ensure that each party understands the mediation process, the role of the mediator and the party's options within the process); ILL. CT. R. AND PROC., REVISED ADMIN. ORDERS OF THE CIR. CT. OF THE 11th JUD. CIR. APP. D., STANDARDS AND PROC. FOR MCLEAN COUNTY CT.-REFERRED DIVORCE MEDIATION, Standard XI (providing that the mediator should promote equal understanding by the participants).
268. See Beryl Blaustone, Training the Modern Lawyer: Incorporating the Study of Mediation into Required Law School Courses, 21 Sw. U.L. REV. 1317, 1330, n.29 (1992) (stating that understanding is necessary for meaningful informed consent).
269. For example, the elderly woman who agrees in mediation to accept $100 as settlement for her slip-and-fall injuries should be made aware that any future injuries that arise out of the same accident may not be compensable because of the settlement of this suit in mediation. Language to this effect is contained on the stipulation of settlement form which is signed by parties who successfully mediate disputes in New York City's small claims courts: "Upon such payment all parties shall be released from liability to each other concerning the matters in this dispute." (form on file with the author).
270. This whole area is complicated by a number of considerations which I will defer until Part V of this Article, for example, whether there is representation of the parties, the place where mediation occurs, and how concerns about neutrality can be accommodated.
271. Such a focus does not privilege the specific act of consenting to participate in the mediation process. Cf. Goldstein, supra note 72, at 691 (arguing in the medical context for a focus on decisionmaking without giving bias to consent).
272. A number of mediation scholars emphasize the importance of decisionmaking. See, e.g., Lande, supra note 103; Riskin, supra note 92; Stulberg, supra note 57.
273. See Lande, supra note 103, at 866-79.
274. For an elaboration of this concept in the physician-patient relationship, see ROBERT A. BURT, TAKING CARE OF STRANGERS 124-43 (1979) (calling for increased conversation as part of an informed consent doctrine).
275. Similar value debates have also occurred in the legal and medical professions. In medicine, the debate has been patient autonomy versus health-related values. See APPELBAUM ET AL., supra note 25, at 130-48. In law, it has been client-versus-lawyer autonomy. See infra notes 54-56 and accompanying text.
276. See, e.g., NANCY H. ROGERS & RICHARD A. SALEM, A STUDENT'S GUIDE TO MEDIATION AND THE LAW 137-48 (1987).
277. See, e.g., Margaret L. Shaw, Does a Mediator Have an Affirmative Duty To Assure That Consent To Settle Is Truly Informed?, 1998 A.B.A. SEC. DISP. RESOL. ("At the heart of what we are trying to do when we examine our responsibility for claims or defenses not raised by parties or their counsel is to balance the goals in mediation of self-determination and informed decisionmaking."); see also Bush, supra note 13; Stark, supra note 80.
278. See Nolan-Haley, Court Mediation, supra note 16, at 47.
279. I note here the valuable contribution of Professor Leonard Riskin's work on mediator orientations in which he presents a conceptual model for understanding the kinds of problems brought to mediation and the role of mediators in working with them. Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7 (1996). My lens, however, is different. I focus on the parties to the dispute and on their exercise of autonomy in decisionmaking rather than on activity by the mediator.
280. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
281. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
282. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
283. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
284. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
285. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
286. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
287. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
288. A number of mediation models and styles have been identified in the theoretical and empirical literature. See, e.g., ROBERT A. BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (describing transformative mediation); DEBORAH KOLB, WHEN TALK WORKS: PROFILES OF MEDIATORS (1994) (describing range of mediator practices); JOHN PAUL LEDERACH, PREPARING FOR PEACE: CONFLICT TRANSFORMATION ACROSS CULTURES (1995) (describing prescriptive and elective mediation training models); Alfini, supra note 66; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 NEGOTIATION J. 277 (1986) (describing shuttle diplomacy and deal-making); Freshman, supra note 107 (community enhancing model); Kenneth Kressel et al., The Settlement-Orientation vs. The Problem-Solving Style in Custody Mediation, 50 J. Soc. ISSUES 67 (1994); Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/Tenant Mediation, 1997 J. DISP. RESOL. 53 (interest-based and rights-based model); Riskin, supra note 188; Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 J.L. & POL'Y 7 (1986) (describing bargaining and a therapeutic style of mediation); Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723 (1996) (describing norm-generating, norm-educating and norm-advocating models); Waldman, Social Norms, supra note 106. See generally Carrie Menkel-Meadow, The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices, 11 NEGOTIATION J. 217 (1995).
289. Although much has been written on the variety of mediator styles, there is less understanding on how these styles affect the interchange between disputing parties and the mediator.
290. See infra Part V where I suggest using an informative decisionmaking model for unrepresented parties in mandatory court mediation.
291. In constructing these models, I have adapted the work of Ezekiel and Linda Emanuel whose comprehensive research in bioethics has informed much of the current informed consent discussion in clinical medical practice. Noting the struggle in the medical profession over the patient's role in decisionmaking, these authors responded to the question of what should be the ideal relationship between physician and patient and identified several decisionmaking models. See Emmanuel & Emmanuel, supra note 29. In this Article, I collapse their interpretive into the informative model. See infra note 197 and accompanying text.
292. Several mediation models described in the theoretical and empirical literature may fit different parts of the decisionmaking models which I describe. In this Article, however, I deliberately do not try to match my descriptions with existing models. As with the physician-patient models described by the Emmanuels, these models do not reflect reality but are "Weberian ideal types." Emmanuel & Emmanuel, supra note 29, at 2221. See MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION (1947).
293. Although these models reflect styles that can be combined, they are each distinguishable.
294. Unrepresented parties would be most vulnerable under the paternalistic model.
295. The Emmanuels refuse to elaborate on the instrumentalist model, associating it with morally objectionable cases. See Emmanuel & Emmanuel, supra note 29, at 2222. My purpose in using it is purely descriptive. For a description of instrumentalism, see Benjamin C. Zipursky, Legal Coherentism, 50 SMU L. REV. 1679, 1692 (1997).
296. This may include information related to both legal and nonlegal interests and to the parties' sense of fairness and justice.
297. There is a rich literature that calls for greater deliberation in client counseling. See, e.g., Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberates?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990).
298. There is a rich literature that calls for greater deliberation in client counseling. See, e.g., Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberates?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990).
299. There is a rich literature that calls for greater deliberation in client counseling. See, e.g., Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberates?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990).
300. There is a rich literature that calls for greater deliberation in client counseling. See, e.g., Colin Croft, Reconceptualizing American Legal Professionalism: A Proposal for Deliberative Moral Community, 67 N.Y.U. L. REV. 1256 (1992); Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberates?, 69 S. CAL. L. REV. 885 (1996); Amy Gutmann, Can Virtue Be Taught to Lawyers?, 45 STAN. L. REV. 1759 (1993); Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213 (1990).
301. Skilled mediation advocates would be able to help their clients make choices about an appropriate or desirable type of mediator-party relationship. Unrepresented parties generally lack this ability. See infra notes 271-87 and accompanying text (discussing the mediator's disclosure duties with respect to unrepresented parties).
302. In this Article, I include information as part of knowledge.
303. See, e.g., Boskey, supra note 114, at 370 (ability to reject proposals); Bush, supra note 13 (describing power imbalance); Lande, supra note 103, at 866-79, 898 (listing seven factors that may be used to form a continuum of quality of consent in mediation); Craig A. McEwen & Richard J. Maiman, Mediation in Small Claims Court: Achieving Compliance Through Consent, 18 L. & SOC'Y REV. 11 (1984) (ability to reject proposals).
304. See, e.g., DAVID A. LAX & JAMES K. SEBENIUS, THE MANAGER As NEGOTIATOR: BARGAINING FOR COOPERATION AND COMPETITIVE GAIN 257 (1986); cf. DAVID SADOFSKY, KNOWLEDGE As POWER: POLITICAL AND LEGAL CONTROL OF INFORMATION (1990).
305. See, e.g., DAVID A. LAX & JAMES K. SEBENIUS, THE MANAGER As NEGOTIATOR: BARGAINING FOR COOPERATION AND COMPETITIVE GAIN 257 (1986); cf. DAVID SADOFSKY, KNOWLEDGE As POWER: POLITICAL AND LEGAL CONTROL OF INFORMATION (1990).
306. Implicit in any discussion of the mediator's role is an explanation of either the kinds of decisionmaking relationships that can exist between parties and the mediator or the individual mediator's view of the decisionmaking relationship between parties and the mediator. The point is that parties need to be able to make knowledgeable choices about the kind of mediation process in which they will participate.
307. This explanation is contextual and depends upon where the mediation occurs. In the informal courts, for example, in addition to explaining the process of mediation, it is important to explain the legal effect of a mediated settlement agreement and what can be done if the agreement is violated. Additionally, in settings where different process options are available, such as mediation and arbitration, parties should understand the differences between these processes.
308. A recent study conducted by the Rand Institute suggests that if a party's informational needs are not met by obtaining the kind of information provided through discovery, that may be an impediment to settlement in mediation. Thus, if cases are referred to mediation before sufficient discovery has been completed, they may not settle. See RAND REPORT, supra note 1, at 20.
309. I recognize that such an approach could be used to make mediation as costly and lawyer-dependent as litigation and arbitration. Some court rules, however, do require discovery in mediation. See, e.g., IOWA R. GOVERNING STANDARDS OF PRAC. FOR LAWYER MEDIATORS IN FAM. DISP. 4 ("The mediator shall assure that there is full financial and factual disclosure, such as each would reasonably receive in the discovery process, or that the participants have sufficient information to waive intelligently the right to such disclosure."); KAN. R. RELATING TO MEDIATION 901; cf. ILL. R. RELATING TO MEDIATION 1.A.2 (mediation should be based on full disclosure of all facts related to the dispute so that a fair and equitable agreement can be reached).
310. In settings such as courts or administrative agencies where legal consequences may attach, parties should have access to information regarding options offered by alternative legal processes or know that they are deliberating without such knowledge.
311. See, e.g., Helm, supra note 74, at 70 (1988) (arguing that mediators disclose the risks of confidentiality and possible loss of privacy if mediator has a duty to warn of threats); Imperati, supra note 73, at 742-43 (listing nineteen items which mediators should disclose); Lande, supra note 103; Moffitt, supra note 108 (arguing for disclosure of mediator style). It should be noted that in some mediation programs, parties have disclosure responsibilities towards each other. See, e.g., Nevada, Family Mediation Program in the Family Division, Second Judicial District Court, Washoe County, Mediation Rules: "(3) Disclosure in mediation: Parties are expected to share all information pertinent to the issues in the presence of both parties." (copy on file with author).
312. Even when parties have knowledge of their rights, it does not mean that they will exercise these rights to the detriment of mediation.
313. See infra Part V.
314. Professor James Boskey suggests three components to voluntariness: 1) each party must understand that they can walk away from the mediation process, 2) no factual misunderstandings exist that the mediator could have corrected or that the mediator created to force a settlement, 3) the mediator should inform each party if they are wrong about the law governing an issue. See Boskey, supra note 114, at 370.
315. One of my students in the Fordham Law School Mediation Clinic observed about her experience in Manhattan Small Claims Court that "participation consent" was achieved with little effort: During my limited mediation experience, I found that for the most part, it was not difficult to get the parties to consent to mediation. The usual hesitancy stemmed from either not understanding the process and the fact that they were not obligated to participate in mediation or from a desire on the part of the parties to 'see the judge.' After a bit more of a methodical approach to explaining the process and what their options were, all of the parties readily consented to the mediation process and were willing to proceed, (copy on file with author).
316. This point is well stated by Suzanne Terry: This increased trust is gained by the mediator's restatement of issues, correct interpretation of feelings, and maintenance of enough order during the process so that each party feels both freedom for self-expression and sufficient restraint not to exceed limits. As trust grows, the parties may allow the mediator more liberties in exploring substantive issues and emotional responses to the content and steps of the process. Suzanne Terry, Conciliation: Responses to the Emotional Content of Disputes, MEDIATION Q., Summer 1987, at 45. The role of trust in mediation may depend in large measure upon context. In the sometimes chaotic settings of one session mediations that occur in the informal courts, it may be more difficult to establish a trust relationship than in a custody or divorce mediation that may involve several sessions. In general, the role of trust in mediation is understudied and merits further theoretical and empirical research.
317. See William Ross & Jessica LaCroix, Multiple Meanings of Trust in Negotiation Theory and Research: A Literature Review and Integrative Model, 7 INT'L J. CONFLICT MGMT. 314, 317 (1996).
318. See Mayer, supra note 71.
319. The meaning of trust differs depending upon the relationship between the negotiating parties and the mediator. For an extensive review of the literature on trust in negotiation and mediation, see Ross & LaCroix, supra note 214.
320. Other exceptions include therapeutic privilege and emergency situations. See APPELBAUM ET AL., supra note 25, at 66-79.
321. See JOHN D. CALAMARI & JOSEPH M. PERILLO, THE LAW OF CONTRACTS 836 (3d ed. 1987) (citing 28 AM. JUR. 2d, Estoppel and Waiver § 154 (1966)). The elements of a valid waiver in the physician-patient relationship require that patients know they have a right of waiver. Patients must know that physicians have a duty to disclose certain information, that they have the legal right to make decisions about their treatment that cannot be rendered without their consent, and that decisionmaking includes the right to refuse treatment. See APPELBAUM ET AL., supra note 25, at 70.
322. See supra notes 203-07 and accompanying text.
323. For an excellent discussion of the right not to receive information, see Gordon, supra note 175.
324. The stakes could be significant. Consider the case of Liebeck v. McDonald, No. CV-93-02419, 1995 WL 360309 (D.N.M. Aug. 18, 1994). The defendant declined to settle the case based on the mediator's recommendation of $225,000, and a jury awarded the plaintiff $160,000 in compensatory damages. See Elizabeth Sherowski, Hot Coffee, Cold Cash: Making the Most of Alternative Dispute Resolution in High-Stakes Personal Injury Lawsuits, 11 OHIO ST. J. ON DISP. RESOL. 521, 522 (1996); see also Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. REV. 1 (1996). Parties may also be unwittingly waiving other rights when they enter into the mediation process. One commentator has suggested that because mediators do not always disclose to parties the limits of confidentiality that they may have a duty to warn parties that they may be waiving privacy rights. See Helm, supra note 74, at 69. The question of waiver comes up in different contexts in mediation. Another commentator has suggested that with respect to the issue of conflicts of interest, "mediators face broader conflicts than attorneys representing clients." John Bickerman, Handling Potential Conflicts in Mediation, 14 ALTERNATIVES TO THE HIGH COST OF LITIG. 83 (1996). "[I]n the adversarial context, as a rule, an attorney can never switch sides in a litigation despite the parties' informed consent. Mediation may pose similar non-waivable conflicts that outweigh the parties' preference for a particular mediator." Id.
325. See, e.g., North Carolina v. Butler, 441 U.S. 369 (1979) (holding that an explicit statement of waiver is not invariably necessary to support a finding that defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case); Miranda v. Arizona, 384 U.S. 436 (1966); Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ("courts indulge every reasonable presumption against waiver' of fundamental constitutional rights (quoting Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393 (1937) . . . .")); see also Jonathan A. Damon, "Far From a Mere Formalism": The Importance of Informing an Accused of Her Indictment After Patterson v. Illinois and Harvey v. Michigan, 23 COLUM. HUM. RTS. L. REV. 93, 130-31 (1991-92).
326. See, e.g., William K. Jones, Private Revision of Public Standards: Exculpatory Agreements in Leases, 63 N.Y.U. L. REV. 717 (1988) (arguing against exculpatory clauses in residential leases).
327. Some courts have refused to uphold mandatory arbitration agreements where employees had not knowingly waived their rights. See, e.g., Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert. denied, 116 S. Ct. 61 (1995) (court reversed order compelling arbitration where employee did not knowingly enter into agreement to arbitrate employment dispute). In the culture of employment arbitration, prospective employees typically sign agreements to arbitrate all disputes that arise in connection with their employment. See, e.g., Gilmer v. Interstate/Johnson Lane Corp. 895 F.2d 195, 200 (4th Cir. 1990) (enforcing agreement compelling arbitration of all claims arising out of employment when claim against employer was one for violation of the Age Discrimination in Employment Act (ADEA)). Compare Duffield v. Robertson Stephens & Son, 144 F.3d 1182 (9th Cir. 1998), cert. denied 119 S.Ct. 445 (1998) (distinguishing post-1991 Title VII claims from the pre-1990 ADEA claims found arbitrable in Gilmer and holding that under the Civil Rights Act of 1991, employees may not be required, as a condition of employment, to waive their right to bring future Title VII claims in court); with Wright v. Universal Maritime Serv. Corp., 121 F.3d 702 (4th Cir. 1997), judgment vacated 1998 U.S. LEXIS 7270 (Nov. 16, 1998) (holding that union-negotiated waiver of employees' statutory right to a judicial forum for claims of employment discrimination must be "clear and unmistakable"). Congress has amended the ADEA to provide that all waivers of rights under the Act must be "knowing and voluntary." Older Workers Benefit Program Act of 1990, 29 U.S.C. § 626(f) (1) (1990). See generally Developments in the Law - Employment Discrimination, 109 HARV. L. REV. 1568, 1677-79, 1684-85 (1996) (advocating a subjective standard for a knowing waiver in mandatory arbitration).
328. See, e.g., IOWA R. GOVERNING STANDARDS OF PRAC. FOR LAWYER MEDIATORS IN FAM. DISP. 4(A) (1989).
329. CONSUMER DUE PROCESS PROTOCOL, supra note 57, at 36 (identifying specific minimum due process standards that embody the concept of fundamental fairness, including informed consent). See generally Thomas J. Stipanowich, Resolving Consumer Disputes: Due Process Protocol Protects Consumer Rights, 53 DISP. RESOL. J. 8 (1998).
330. See, e.g., Waldman, Multiple Model Approach, supra note 106, at 740-42 (discussing circumstances under which parties would not be allowed to waive social and legal norms); Stulberg, Fairness, supra note 57, at 945 (proposing that a uniform mediation statute contain a nonwaivable right to counsel).
331. See People v. Snyder, 492 N.Y.S.2d 890, 891-92 (N.Y. Sup. Ct. 1985).
332. See Goldstein, supra note 72, at 686.
333. In my view, information about the mediation process is essential to secure consent to participate. Participation disclosure information, therefore, should be nonwaivable unless a person is well-versed in the mediation process. See generally Anthony T. Kronman, Paternalism and the Law of Contracts, 92 YALE L.J. 763 (1983) (describing three different forms of paternalism in which law does not allow people to waive rights).
334. See infra notes 118-33 and accompanying text.
335. See supra Section III.B.
336. For a different claim that mediation fails to value context, see McEwen, supra note 57, at 1353.
337. One of the overarching challenges for policymakers in developing informed consent protocols is determining the disclosure and consent duties of all who offer mediation services. In this regard, some commendable work has already begun. See NATIONAL STANDARDS, supra note 118 (detailing information that courts should provide to judges, court personnel, the bar and parties and their attorneys); DRAFT PRINCIPLES FOR ADR PROVIDER ORGANIZATIONS, CPR-GEORGETOWN COMMISSION (Oct. 1998) (proposing "reasonable disclosure of key information about ADR provider organizations"); SPIDR LAW AND PUBLIC POLICY COMMITTEE, MANDATED PARTICIPATION AND SETTLEMENT COERCION: DISPUTE RESOLUTION As IT RELATES TO THE COURTS 18 (1991) ("Mandatory participation should be used only when a high quality program . . . provides clarity about the precise procedures that are required."); QUALIFYING NEUTRALS: THE BASIC PRINCIPLES, REPORT OF SPIDR COMMISSION ON QUAUFICATIONS 8 (May 1989) ("programs offering dispute resolution services should disclose their selection criteria"); AAA CONSUMER PROTOCOL, supra note 57, at 15, 35-36; cf. Guthrie & Levin, supra note 1, at 900 (calling for courts to provide premediation education); Kurtzberg & Henikoff, supra note 189 (discussing mediation providers' responsibility to provide legal information).
338. These situations are quite different from buying a car, for example, where the buyer is protected only by fraud law, which places a lower burden on the seller than the doctrine of informed consent. In these cases, there is a need for disclosure because a reasonable person would need information and a basis for finding a duty. Also in these situations, absent disclosures, the person is not really considered to have consented because she did not know what she was agreeing to. Thus, the amount of information is also important in determining if there is really consent.
339. Mediation practice reflects much of the informed consent culture of medicine and law and thus it is tempting to conceptualize the mediator's role as similar to that of the physician and the lawyer in securing informed consent. But there are important functional differences between mediators, physicians and lawyers. First, the fiduciary duties owed by mediators differ from those of physicians and lawyers. The physician owes a duty only to his or her patient. The lawyer owes a duty to his or her client and the court system. The mediator however, owes an obligation to both parties to maintain the integrity of the mediation process. Second, the nature of decisionmaking differs. Unlike clients and patients who "theoretically" engage in collaborative decisionmaking with their physicians and lawyers, disputants' decisionmaking in mediation is not done primarily in collaboration with the mediator but with the other disputing party and also with their own lawyers if they have one. The mediator simply assists the decisionmaking process. The nature of the fiduciary relationship between mediators and disputing parties merits extended discussion and is beyond the scope of this Article. See supra notes 213-16 and accompanying text (discussing relationship of trust to "participation consent" in mediation). See Arthur Chaykin, Mediator Liability: A New Role for Fiduciary Duties?, 53 CINN. L. REV. 731 (1984).
340. See JOINT STANDARDS OF CONDUCT, supra note 7 ("The concept of mediator impartiality is central to the mediation process. A mediator shall mediate only those matters in which she or he can remain impartial and evenhanded. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator is obligated to withdraw.").
341. For a discussion of other kinds of information which commentators suggest that mediators disclose to panics, see text accompanying notes 106-08.
342. Whether mediators can and should ever include evaluation in their services depends upon one's conceptual understanding of mediation. See supra Part II.
343. See supra Part IV.
344. The parties should understand that their consent to continued participation in mediation and to the outcome should be voluntary.
345. In this regard, see FLA. ST. MED. R. 10.110(3) (West 1997), which provides: "Integrity of the Agreement. The mediator shall not knowingly assist the parties in reaching an agreement which for reasons such as fraud, duress, overreaching, the absence of bargaining ability, or unconscionability would be enforceable." See also text accompanying notes 203-04 for a more detailed discussion of the elements of "participation disclosure."
346. Such disclosures are not only required by the human dignity value of informed consent, see supra notes 72-78 and accompanying text, but by some state regulations that require honesty between the parties in mediation. See, e.g., Nevada, Family Mediation Program in the Family Division, Second Judicial District Court, Washoe County, Rule 3, n.243 (on file with author). Also see the text accompanying notes 205-07 for a discussion of the elements of "outcome disclosure."
347. The extent of this responsibility depends upon whether the parties are represented by lawyers. See infra note 292 and accompanying text.
348. See supra Part III.
349. This approach is similar to that followed by the SPIDR Commission on Qualifications which shows sensitivity to dispute context and assumes that mediator styles of practice will differ depending on the context. See SPIDR REPORT, supra note 18; Ensuring Competence and Quality in Dispute Resolution Practice, in REPORT 2 OF THE SPIDR COMMISSION ON QUALIFICATIONS 5 (1995).
350. These parties can decide, for example, what kind of mediator relationship they wish and their attorneys can inform them about the mediator's background.
351. See Boskey, supra note 114; Lande, supra note 103.
352. Because parties voluntarily choose to mediate, they have greater responsibility in the decision to select a particular mediator. See DRAFT PRINCIPLES FOR ADR PROVIDER ORGANIZATIONS, CPU-GEORGETOWN COMM'N, at 8; SPIDR LAW AND PUBLIC POLICY COMM., MANDATED PARTICIPATION AND SETTLEMENT COERCION: DISPUTE RESOLUTION AS IT RELATES TO THE COURTS (1991); cf. Schuck, supra note 29, at 906, 958 n.227 (citing authors who have proposed a contractual approach to informed consent in medicine).
353. This approach is followed in the AAA CONSUMER PROTOCOL, supra note 57, at 36. Education of users should also include some treatment of the distinctive styles and strategies employed by mediators . . . . Participants need to decide in advance of selection the approach they want a mediator to adopt. Id. Some sectors in private industry are also adopting this approach. The National Association of Securities Dealers (NASD) requires more background information on mediators so people know who they are choosing. See NAT'L ASS'N OF SECURITIES DEALERS MEDIATION R. 10404(b) (1997). The construction industry is also supportive of such disclosure. See Thomas J. Stipanowich, The Multi-Door Contract and Other Possibilities, 13 OHIO ST. J. ON DISP. RESOL. 303, 372 (1998). Finally, several commentators support the notion that mediators should disclose their styles of mediation so that parties may bargain for their choice of style. See, e.g., Imperati, supra note 73; Lande, supra note 103; Moffitt, supra note 108.
354. This approach gives guidance on the difficult issue of whether mediators should give legal advice or identify legal issues. See, e.g., Imperati, supra note 73, at 738.
355. See supra Part IV.
356. See supra Part IV.
357. The facilitative versus evaluative conundrum, for example, could be understood as an agreement for a process-driven or result-driven mediation. See Feerick et al., supra note 87, at 103 (remarks of Professor Leonard Riskin).
358. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
359. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
360. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
361. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
362. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
363. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
364. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
365. There are numerous critics of mandatory mediation programs. See Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics of Power, 40 BUFF. L. REV. 441, 441-46 (1992); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1547, 1549-51 (1991); see also MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM 144-46 (1991); Andre G. Gagnon, Ending Mandatory Divorce Mediation for Battered Women, 15 HARV. WOMEN'S L.J. 272, 272-73 (1992); Robert Geffner & Mildred D. Pagelow, Mediation and Child Custody Issues in Abusive Relationships, 8 BEHAV. Sci. & L. 151 (1990); Mary P. Treuthart, In Harm's Way? Family Mediation and the Role of the Attorney Advocate, 23 GOLDEN GATE U. L. REV. 717, 721-31 (1993); Laurie Woods, Mediation: A Backlash to Women's Progress on Family Law Issues, 19 CLEARINGHOUSE REV. 431, 435-36 (1985). But see Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETTE L. REV. 565 (1997) (reporting studies in the small claims court context showing little support for claim that parties are pressured to accept unfair settlements in mandatory mediation).
366. In private mediation settings, mandatory mediation clauses are adopted by industries and inserted into contracts. See, e.g., AAA CONSUMER PROTOCOL, supra note 57; see also Thomas J. Stipanowich, On the Cutting Edge: Conflict Avoidance and Resolution in the Construction Industry, in AMERICAN ARBITRATION ASSOCIATION, ADR & THE LAW 65, 66-67 (1997) (noting growing use in construction industry); Stipanowich, supra note 250, at 373 (discussing adoption of mandatory mediation clauses in architects contracts).
367. There may be, for example, a stronger case for requiring disclosure of the mediator's style and practices. Cf. Richard Delgado & Helen Leskovac, Informed Consent in Human Experimentation: Bridging the Gap Between Ethical Thought and Current Practice, 34 UCLA L. REV. 67, 129 (1986).
368. For an example of an excellent court rule that shows such sensitivity, see MASS. ST. CT. UNIF. R. ON DISP. RESOL. 6(i). Inappropriate Pressures to Settle. Courts shall inform parties that, unless otherwise required by law, they are not required to make offers and concessions or to settle in a court-connected dispute resolution process. Courts shall not impose sanctions for nonsettlement by the parties . . . . Id. See also IND. CODE ANN., tit. 34, App. on ADR, Rule 2.1 (West 1996) (parties are required to mediate in good faith but are not required to settle). See NATIONAL STANDARDS, supra note 118, at Rule 5. See generally Margaret Shaw et al., National Standards for Court-Connected Mediation Programs, 31 FAM. & CONCILIATION REV. 156 (1993).
369. Overall, we need empirical study to identify the subtle kinds of coercion that occur in mandatory mediation programs and its effect on the voluntariness of any outcome that results. For example, in the informal courts where docket control may be a primary motivation for mediation, a mediator may tell parties "If you folks do not reach an agreement today in mediation, you may have to come back to court three or four times before a judge will be able to hear your case." What impact does this statement have on a party's decision to settle in mediation?
370. See Burns, supra note 66 (describing several differences between judicial mediation in the public courts and in private settings).
371. See Nolan-Haley, Court Mediation, supra note 16, at 63.
372. Such disclosures would depend on the parties' representational status and on their expectations when they initially sought to resolve their dispute in court. This is not to encourage outcomes which approximate legal remedies, but to insure that agreements based on nonlegal values are at least informed by the law. This may require a duty of greater disclosure to unrepresented parties. See infra Part V.B.3 (on unrepresented parties).
373. This would include information about the kind of mediation process the parties wish. The extensive literature on mediator styles and practices helps the mediation advocate to know what processes are available and to advise clients accordingly. See supra note 103. Thus, legal representation enhances the participants' informed decisionmaking. See ILL. CT. R. 11, No.14 (describing the role of an attorney representing parties in mediation).
374. Opinion is mixed about the value that lawyers bring to mediation. Lawyers' participation in mediation has been encouraged because it can improve the fairness of negotiations in mediation and protect parties from settlement pressures. See, e.g., Rogers & McEwen, Employing the Law, supra note 84; McEwen et al., supra note 57, at 1394 ("[l]awyers' participation in the mediation session . . . buffers the pressures to settle" which parties may experience); Stulberg, supra note 57, at 943-44 (arguing for lawyers in court mediation). On the other hand, lawyers may undermine the mediation process by adapting negotiating strategies that are incompatible with the goals of mediation. See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 986 (1979) ("Lawyers may be more likely than lay people to adopt negotiating strategies involving threats and the strategic misrepresentation of their client's true preferences in the hope of reaching a more favorable settlement for the client."); Lande, supra note 103, at 876 ("Although the participation of the principals' lawyers in mediation may provide some assurances of high-quality consent, if the lawyers are strongly motivated to reach some settlement in the mediation, their presence may undermine rather than support the principals' decisionmaking ability . . . ."). As mediation becomes increasingly institutionalized in the court system, it may have to be taken into account in litigation planning. For a discussion of the value that lawyers add to litigation bargaining, see Russell Korobkin & Chris Guthrie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, 76 TEX. L. REV. 77, 137 (1997) ("Our experimental results support the hypothesis that lawyers, on average, evaluate litigation options differently than litigants, with lawyers' evaluations more likely to be consistent with the expected value analysis presumed by economic models of litigation. Because the monetary cost of trial - relative to settlement - is high, it follows that lawyers will favor settlement more often than their clients.") See Ronald J. Gilson & Robert H. Mnookin, Cooperation and Competition in Litigation: Can Lawyers Dampen Conflict?, in BARRIERS TO CONFLICT RESOLUTION 185 (Kenneth Arrow et al. eds., 1995) (exploring notion that lawyers may be able to cooperate with each other in situations where clients cannot). For a helpful discussion and guidelines for lawyers who advocate for clients in mediation, see Jean R. Sternlight, Lawyers' Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Non-Adversarial Setting (forthcoming in 14 OHIO ST. J. ON DISP. RESOL. (1999)).
375. See supra notes 240-44 and accompanying text.
376. See, e.g., Russell Engler, Out of Sight and Out of Line: The Need for Regulation of Lawyers' Negotiations with Unrepresented Poor Persons, 85 CAL. L. REV. 79 (1997).
377. See, e.g., ALA. CODE OF ETHICS FOR MEDIATORS, Standard 7(d) (1997).
378. E.g., DEL. CT. R. CIV. P. 16.2(I); ALA. CODE OF ETHICS FOR MEDIATORS, Standard 7(b).
379. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
380. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
381. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
382. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
383. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
384. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
385. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United
386. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
387. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
388. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
389. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
390. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
391. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
392. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
393. See CONSORTIUM ON LEGAL SERVICE AND THE PUBLIC, AMERICAN BAR ASS'N, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE, A FINAL REPORT ON THE IMPLICATIONS OF THE COMPREHENSIVE LEGAL NEEDS STUDY (1996); COMMISSION ON NONLAWYER PRACTICE, AMERICAN BAR ASS'N, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 35 (Aug. 1995) [hereinafter NONLAWYER ACTIVITY] (citing studies on inability of low-income and middle-income households to obtain legal services); Deborah Chalfie, Break the Lawyers' Legal Advice Monopoly, NEWSDAY, Dec. 3, 1989, at 4 (noting studies that show low- and middle-income people being "shut out of America's legal system" because they cannot afford lawyers); John Greenya, A Crisis of Inadequate Representation: Report of the D.C. Bar Public Service Activities Corporation Landlord Tenant Task Force, THE WASHINGTON LAWYER 42, Nov.-Dec. 1998 at 42; Susan Freinkel, Breaking Up Is Hard To Do, RECORDER, Nov. 2, 1992, at 1 (discussing the increase in number of litigants without lawyers in California courts); The Honorable Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 FORDUAM L. REV. 5, 8 (1994) ("eighty percent of the poor and the working poor in the United States do not have access to legal services"); Louis S. Rulli, Pennsylvania Review, 1994 - Forward: Pennsylvania Legal Service at Risk, 68 TEMP. L. REV. 541, 544 n.17 (1995) ("as much as 80% of the civil legal needs of the poor are unmet with current resources") (citing AMERICAN BAR ASS'N, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS (1994); AMERICAN BAR ASS'N, NATIONAL SURVEY OF THE CIVIL LEGAL NEEDS OF THE POOR (1989); REPORT OF THE PENNSYLVANIA BAR ASS'N TASK FORCE FOR LEGAL SERVICES TO THE NEEDY (1990)). A 1987 study of the legal needs of the poor in Massachusetts found that no more than 15% of the total legal needs of the poor were being met. See MASS. LEGAL ASSISTANCE CORP., MASS. LEGAL SERVICES PLAN FOR ACTION 3 (1987) [hereinafter MLAC Plan for Action]. "Between 85% and 92% of the low income people in Louisiana who had civil legal needs in 1991 were not represented by an attorney." William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 19 S.U. L. REV. 273 (1992). See also NEW YORK STATE BAR ASS'N COMMITTEE ON LEGAL AID, NEW YORK LEGAL NEEDS STUDY: FINAL REPORT (December 1993) (stating that no more than 14% of the poor's overall need for legal assistance was being met); REPORT OF ADVISORY COUNCIL OF MARYLAND LEGAL SERVICES CORPORATION, ACTION PLAN FOR LEGAL SERVICES TO MARYLAND'S POOR (1988). See generally Sophia M. Deseran, The Pro Bono Debate and Suggestions for a Workable Reform, 38 CLEVELAND ST. L. REV. 617, 636-37 (1990).
394. E.g., CAL. FAM. CODE § 3182 (West 1998); IDAHO CT. R. 16(j), 8(B) (child custody and visitation disputes); KAN. STAT. ANN. § 23-603(a) (6) (West 1997); WIS. STAT. ANN. § 767.11(10) (a) (West 1997); ARIZ. REV. STAT., LOCAL R. OF PRAC. SUPERIOR CT. MARICOPA COUNTY 6.8 (e) (giving the mediator the discretion to exclude counsel in domestic relations mediation).
395. This may result in the mediator engaging in practices that could be considered a form of evaluative mediation.
396. See Volpe & Bahn, supra note 75, at 304 (recommending that mediators give information when parties lack ability or skills to negotiate adequately).
397. It should be noted, however, that in many community-based mediation programs, intake staff members provide process information to the parties before the mediation session begins.
398. There is a danger that parties who are nervous, or who may be in court for the first time, do not listen to the opening statement very carefully. The National Standards for Court-Connected Mediation Programs do show sensitivity to pro se parties in mediation, particularly to the feeling that they must settle. See Shaw et al., supra note 258.
399. See Kurtzberg & Henikoff, supra note 86.
400. See supra note 141 (discussing Utah's approach).
401. One unhappy court mediation consumer has suggested that courts might provide an outline or some instruction for both parties to follow. See Wendy Clark, One Consumer's View of ADR, NIDR (Summer/Fall 1993), at 15. We must also be sensitive to the problem of illiteracy in the United States. See WORLD ALMANAC AND BOOK OF FACTS 832 (1998) (citing a 4% illiteracy rate in the United States).
402. An eloquent summary of the dilemma faced by mediators is found in the Mediator's Manual for New York City Housing Court: One goal of mediation is empowerment of the parties through participation in the process - through meaningful bargaining and self-determination. Yet without knowledge of one's rights, how can a party truly bargain or determine the future? Pro se tenants who may face eviction from their homes and pro se landlords who may face loss of their home, life-savings and/or property are both entitled to participate in the mediation process from positions of knowledge of rights rather than ignorance. Remember, what's at stake here is shelter - a basic human necessity. Mediator's Manual for New York City Housing Court (prepared by Gail Davis, Esq. 1997) (copy on file with the author).
403. See Depner et al., supra note 143, at 310, 316 (reporting high satisfaction with custody mediation in California and observing that "information and community referrals may be particularly helpful to clients who have less formal education and fewer financial resources"); Gary LaFree & Christine Rack, The Effects of Participants' Ethnicity and Gender on Monetary Outcomes in Mediated and Adjudicated Civil Cases, 30 L. & SOC'Y REV. 767 (1996) (empirical study of small claims actions in New Mexico found that minority plaintiffs and white, non-Hispanics made agreements in mediation which on the average represented less money than the court awarded similar plaintiffs). The authors propose that mediators might clarify two forms of mediation, one that replicates the court model and one that is facilitative, and determine which of them is appropriate in a particular dispute. See id. at 793.
404. For a disturbing account of what happens to unrepresented tenants in one housing court's mediation program, see Erica L. Fox, Alone in the Hallway: Challenges to Effective Self-Representation in Negotiation, 1 HARV. NEGOTIATION L. REV. 85, 91-92 (1996). When tenants arrived at court, an official directed most of them upstairs to mediation . . . . Tenants received little guidance through the process. The court officials gave no explanation of mediation, nor did they mention its voluntary nature. Mediation was never distinguished from negotiation, the process in which most tenants participated. No information was available regarding the rights and responsibilities of the landlords or tenants. Similarly, no one was available to answer questions. Id. at 92-93.
405. I assume here that the mediator is competent to offer such a model.
406. In this regard, the mediator should explain the meaning and purpose of the informative model - that legal information is provided so that parties can make reasonably educated decisions. At the same time, parties should understand the limitations of this kind of legal information. See Stark, supra note 80, at 797. Finally, parties should be able to freely reject this type of mediator-party relationship.
407. In this respect, the informative model is similar to the approach adopted by the A.B.A. STANDARDS OF PRACTICE, supra note 97, at Standard IV.
408. See, e.g., Wright v. Brockett, 571 N.Y.S.2d 660 (N.Y. Sup. Ct. 1991).
409. Several scholars support giving some kind of legal information to parties. See, e.g., Maute, supra note 57; Stark, supra note 80, at 795; Waldman, supra note 103, at 152 ("[M]ediators better serve their clients if they can offer sufficient legal information to permit continued negotiation, thus limiting the role of independent counsel to that of a fine-tuning specialist."); Weckstein, supra note 103, at 530. For a description of several landlord-tenant mediation programs that provide legal information to parties, see Kurtzberg & Henikoff, supra note 86 at 116 (arguing that mediation programs should consider it part of their professional responsibility to inform uniformed parties of their rights).
410. This would not even be possible with attorney representation.
411. This equally important understanding requires that parties also have an appreciation of their nonlegal interests.
412. The intervention of an unbiased neutral is one of the defining characteristics of mediation.
413. See, e.g. Maute, supra note 101; Schuwerk, supra note 18; Stark, supra note 80, at 796; see also supra note 105 and sources cited therein.
414. See, e.g., Barbara Filner & Michael Jenkins, Performance-Based Evaluation of Mediators: The San Diego Mediation Center's Experience, 30 U.S.F. L. REV. 647, 649 (1996).
415. See SARA COBB & JANET RIFKIN, PRACTICE AND PARADOX: DECONSTRUCTING NEUTRALITY IN MEDIATION, LAW AND SOCIAL INQUIRY 5 (1991).
416. This is particularly true in Small Claims Court where a wide variety of legal issues come into play. See, e.g., Thomas A. Dickerson, Applying Consumer Protection Laws in Small Claims, N.Y.L.J., Sept. 21, 1998, at 1.
417. See generally SOCIETY OF PROFESSIONALS IN DISPUTE RESOLUTION, QUALIFYING DISPUTE RESOLUTION PRACTITIONER'S: GUIDELINES FOR COURT-CONNECTED PROGRAMS (State Justice Institute 1998).
418. Such a perfection standard is not even required in the physician-patient or lawyer-client relationship. See supra Part II. Rather, the informative model attempts to provide unrepresented parties with sufficient legal information to promote reasonably educated choices.
419. The difficulty that low income and moderate income parties will have in accessing lawyers is well-documented. See supra note 269. Fortunately, there are some innovative mediation programs that provide assistance to pro se parties. See New York City Housing Court Mediation Manual (1997) (on file with the author). Another example of what could be done is the MASSACHUSETTS SUPREME COURT UNIFORM RULE ON DISPUTE RESOLUTION 6(1) which provides in part: The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case. See also Kurtzberg & Henikoff, supra note 86 (describing landlord-tenant mediation programs that provide legal information to unrepresented parties).
420. See, e.g., Symposium, Is Mediation the Practice of Law, NATIONAL INSTITUTE FOR DISPUTE RESOLUTION FORUM 1 (1996); Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities, 38 S. TEX. L. REV. 407 (1997); Carrie Menkel-Meadow, The Silences of the Restatement of the Law Governing Lawyers: Lawyering As Only Adversary Practice, 10 GEO. J. LEGAL ETHICS 631 (1997). For a view of the practicing bar on this issue, see MICHIGAN BAR STANDING COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS, Op. RI-278 (1966) (document drafting by an attorney-mediator is a legal service) and NEW YORK BAR ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS, Formal Op. 678 (1996) (offering advice in mediation by lawyer-mediators may be the practice of law).
421. See, e.g., Symposium, Is Mediation the Practice of Law, NATIONAL INSTITUTE FOR DISPUTE RESOLUTION FORUM 1 (1996); Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities, 38 S. TEX. L. REV. 407 (1997); Carrie Menkel-Meadow, The Silences of the Restatement of the Law Governing Lawyers: Lawyering As Only Adversary Practice, 10 GEO. J. LEGAL ETHICS 631 (1997). For a view of the practicing bar on this issue, see MICHIGAN BAR STANDING COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS, Op. RI-278 (1966) (document drafting by an attorney-mediator is a legal service) and NEW YORK BAR ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS, Formal Op. 678 (1996) (offering advice in mediation by lawyer-mediators may be the practice of law).
422. See, e.g., Symposium, Is Mediation the Practice of Law, NATIONAL INSTITUTE FOR DISPUTE RESOLUTION FORUM 1 (1996); Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities, 38 S. TEX. L. REV. 407 (1997); Carrie Menkel-Meadow, The Silences of the Restatement of the Law Governing Lawyers: Lawyering As Only Adversary Practice, 10 GEO. J. LEGAL ETHICS 631 (1997). For a view of the practicing bar on this issue, see MICHIGAN BAR STANDING COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS, Op. RI-278 (1966) (document drafting by an attorney-mediator is a legal service) and NEW YORK BAR ASSOCIATION COMMITTEE ON PROFESSIONAL ETHICS, Formal Op. 678 (1996) (offering advice in mediation by lawyer-mediators may be the practice of law).
423. See Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors - Or Even Good Sense?, 1980 AM. B. FOUND. RES. J. 159; Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1 (1981).
424. See Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors - Or Even Good Sense?, 1980 AM. B. FOUND. RES. J. 159; Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1 (1981).
425. See ROGERS & MCEWEN, supra note 81, at § 10:05; see also Werle v. Rhode Island Bar Ass'n, 755 F.2d 195 (1st Cir. 1985).
426. See supra note 269.
427. This assumes that the mediator is aware that a legal issue may be involved. For an excellent example of sensitivity to the plight of pro se parties, see Mediator's Manual for New York City Housing Court (1997) (on file with the author) ("As mediators, we are prohibited from rendering legal advice to the parties; however, we must be aware of and able to identify legal issues which may arise which would render the process itself or any agreement entered into unfair and inappropriate.").
428. Several commentators support relaxation of rules prohibiting unauthorized practice. See, e.g., Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & Soc. CHANGE 701 (1996); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995); Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS, 209 (1990); Prohibitions on Nonlawyer Practice: An Overview and Preliminary Assessment, in REPORT OF THE COMMISSION ON PROFESSIONAL RESPONSIBILITY OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 190-209 (March 1995) (giving "preliminary endorsement to a deregulated licensing approach that permits greater nonlawyer practice in specified areas but establishes minimal requirements in order to protect the public while simultaneously increasing the availability of low-cost, accessible legal services to all"). Attorney General Janet Reno has called for greater access to justice and has suggested a proposal for licensed community advocates who would be trained to assist parties in dealing with common legal problems. See The Honorable Janet Reno, Address at the 1999 Annual Meeting of the Association of American Law Schools in New Orleans, Louisiana (Jan. 9, 1999). Extensive analysis of the unauthorized practice doctrine in relation to mediation practice is beyond the scope of this Article. Cf. NONLAWYER ACTIVITY, supra note 269.
429. Several commentators support relaxation of rules prohibiting unauthorized practice. See, e.g., Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & Soc. CHANGE 701 (1996); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995); Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS, 209 (1990); Prohibitions on Nonlawyer Practice: An Overview and Preliminary Assessment, in REPORT OF THE COMMISSION ON PROFESSIONAL RESPONSIBILITY OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 190-209 (March 1995) (giving "preliminary endorsement to a deregulated licensing approach that permits greater nonlawyer practice in specified areas but establishes minimal requirements in order to protect the public while simultaneously increasing the availability of low-cost, accessible legal services to all"). Attorney General Janet Reno has called for greater access to justice and has suggested a proposal for licensed community advocates who would be trained to assist parties in dealing with common legal problems. See The Honorable Janet Reno, Address at the 1999 Annual Meeting of the Association of American Law Schools in New Orleans, Louisiana (Jan. 9, 1999). Extensive analysis of the unauthorized practice doctrine in relation to mediation practice is beyond the scope of this Article. Cf. NONLAWYER ACTIVITY, supra note 269.
430. Several commentators support relaxation of rules prohibiting unauthorized practice. See, e.g., Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & Soc. CHANGE 701 (1996); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995); Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS, 209 (1990); Prohibitions on Nonlawyer Practice: An Overview and Preliminary Assessment, in REPORT OF THE COMMISSION ON PROFESSIONAL RESPONSIBILITY OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 190-209 (March 1995) (giving "preliminary endorsement to a deregulated licensing approach that permits greater nonlawyer practice in specified areas but establishes minimal requirements in order to protect the public while simultaneously increasing the availability of low-cost, accessible legal services to all"). Attorney General Janet Reno has called for greater access to justice and has suggested a proposal for licensed community advocates who would be trained to assist parties in dealing with common legal problems. See The Honorable Janet Reno, Address at the 1999 Annual Meeting of the Association of American Law Schools in New Orleans, Louisiana (Jan. 9, 1999). Extensive analysis of the unauthorized practice doctrine in relation to mediation practice is beyond the scope of this Article. Cf. NONLAWYER ACTIVITY, supra note 269.
431. Several commentators support relaxation of rules prohibiting unauthorized practice. See, e.g., Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & Soc. CHANGE 701 (1996); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995); Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS, 209 (1990); Prohibitions on Nonlawyer Practice: An Overview and Preliminary Assessment, in REPORT OF THE COMMISSION ON PROFESSIONAL RESPONSIBILITY OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 190-209 (March 1995) (giving "preliminary endorsement to a deregulated licensing approach that permits greater nonlawyer practice in specified areas but establishes minimal requirements in order to protect the public while simultaneously increasing the availability of low-cost, accessible legal services to all"). Attorney General Janet Reno has called for greater access to justice and has suggested a proposal for licensed community advocates who would be trained to assist parties in dealing with common legal problems. See The Honorable Janet Reno, Address at the 1999 Annual Meeting of the Association of American Law Schools in New Orleans, Louisiana (Jan. 9, 1999). Extensive analysis of the unauthorized practice doctrine in relation to mediation practice is beyond the scope of this Article. Cf. NONLAWYER ACTIVITY, supra note 269.
432. While there is not yet a uniform statute to govern mediation practice, a joint working group of the Uniform Law Commission and American Bar Association, under the direction of Professor Nancy Rogers, is currently engaged in efforts to draft such a statute. I urge the commission to include in the uniform statute a robust concept of informed consent that is sensitive to the plight of unrepresented parties in mandatory mediation programs.