Self-Determination and Informed Consent

09/18/2017 01:51 pm ET Updated Sep 19, 2017

Last week, I published an article titled Don’t Confuse Conciliation Court with Mediation, which was shared by the Harvard Negotiation & Mediation Clinical Program at Harvard Law School. That program “focuses on cutting edge work in dispute systems design, negotiation, mediation, and facilitation.” In any event, it shared my article and asked the following question: “How do you define mediation?”

After I thanked them for sharing my article, they responded as follows:

“Thanks for writing it, Mark. We think and talk about these kinds of permutations lots around these parts and at the Harvard Mediation Program. And we too believe that mediation should be grounded in self-determination and informed consent.”

The concepts of self-determination and informed consent cut to the very core of my being and fuel my advocacy work, which includes my prolific article writing and use of the social media.

Self-determination is defined as “the act or power of making up one’s own mind about what to think or do, without outside influence or compulsion.”

The Legal Dictionary defines informed consent as follows:

The act of agreeing to allow something to happen, or to do something, with a full understanding of all the relevant facts, including risks, and available alternatives. That full knowledge and understanding is the necessary factor in whether an individual can give informed consent. This type of consent applies to many situations in life, including making decisions about medical care and legal issues, as well as entering into contracts.”

The American Bar Association’s Center for Professional Responsibility defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

One might assume that providing clients with “adequate information and explanation about the material risks of and reasonably available alternatives to” litigation and adversarial negotiation would fall within the purview of a lawyer’s professional responsibility.

That may be a false assumption, depending upon the jurisdiction in which you are located.

For example, last year, I attended a program in which the presenter showed the lawyers in attendance three different laws requiring lawyers to inform their clients of non-litigation options for resolving their disputes. We were asked which one was from California.

Turns out it was a trick question. The laws were from three different states, but California has no such a requirement. In other words, there is nothing illegal, unethical or otherwise inappropriate for lawyers in California not to advise their clients of non-litigation processes that might be available to them.

However, in all fairness, even if lawyers in California were required to provide such information to their clients, it could still be conveyed in a biased manner.

Consider the following excerpt from Forrest S. Mosten’s article titled Unbundled Services To Enhance Peacemaking For Divorcing Families that was published in the July 2015 edition of Family Court Review: An Interdisciplinary Journal:

“The traditional family lawyer is a full service lawyer who has the background, skills, and availability to file necessary court documents and represent the client in any court litigation necessary to obtain relief desired. Unlike a cancer patient who sees an internist or a medical oncologist well before deciding that surgery is an option, a family law client generally engages their surgeon (litigator) early in the process. Even if a client wants to avoid court (as most do), few clients are informed by their family lawyer that there may be other lawyers in the same community who do not litigate. Further, there is rarely a lawyer-client discussion about the impact on the client of having a lawyer whose income and professional view of client care may be heavily impacted by training, participation, and confidence in the litigation process. It is not unusual for professionals to bias their advice based on the approach and services that they offer. While they generally also offer less invasive procedures, surgeons are more likely to recommend the surgical option. In the same, while they endorse settlement, many litigators readily recommend and utilize the courts as a key tool in their professional approach.
Adequate informed consent should require that lawyers who litigate to discuss the possible availability of lawyers who are not also providers of litigation services. Lawyers who litigate should offer a discussion of the benefits and risks of utilizing a lawyer who litigates compared with one who does not. Most ethical opinions require written informed consent before a client chooses legal representation that limits scope (particularly, a limitation of scope that excludes litigation services such as Collaborative Law). I am proposing a heretical concept – namely informed consent be required in the reverse: Before accepting a litigation engagement, a lawyer should proactively and clearly inform a client about the benefits and risks of being represented by a lawyer who provides litigation services, acknowledge an understanding and undertaking of those benefits and risks as well as being informed of local availability of competent family lawyers who will offer unbundled legal services, and acknowledge such consent of engaging the lawyer litigator in a lawyer-client fee agreement or other written document.”

Many of those involved in the field of family law are angered by what they perceive as my constantly “attacking the hard-working family law attorneys and their clients who have no choice but to use the court system.”

I am well-aware that some clients “have no choice but to use the court system” and I have never attacked any attorney for assisting their clients in that regard. In fact, that was a major reason why I refused to endorse the film Divorce Corp. In fact, I published an 11-Part series of articles on Blogs On Divorce setting forth 58 reasons why I refused to endorse the film. The series is titled A Conversation between Joe Sorge and Mark Baer Regarding ‘Divorce Corp.’. If I felt that litigation was never appropriate in family law matters under any circumstances, I would have endorsed that film without any hesitation.

However, if lawyers aren’t providing their clients with the information they need to make informed decisions as to the process and approach they believe would be most appropriate for their particular situation, is family court being used as a last resort? Challenging lawyers to use it as a last resort shouldn’t be controversial. In fact, consider the following excerpt from an article by Hon. Thomas Trent Lewis, who is currently the Supervising Judge Family Law Division of the Los Angeles County Superior Court, titled Helping Families By Maintaining A Strong Well-Funded Family Court That Encourages Consensual Peacemaking: A Judicial Perspective:

“Our judicial officers are available to offer decisions when parties cannot or choose not to decide for themselves....
If the family court is to be a last resort for family resolution, we have an affirmative duty to work with other institutions to educate parents on resources and best practices for parenting their children....
Ultimately, whether a family litigates its disputes or resolves the dispute through mediation, parental education on the effects upon children in the midst of a family law dispute advances the goal of 'mediate when you can, and litigate only when you must.'...
When personal safety is not at issue or compromised, mediated and collaborative negotiated resolution of disputes can achieve favorable and more durable outcomes for parents and children. It is the obligation of our courts to supplement our decision-making authority with an educational role to inform parties about peacemaking options inside and outside the courthouse.”

If I knew that cases were only going before judges “when parties cannot or choose not to decide for themselves”, I wouldn’t take issue, other than with regard to the unnecessary use of aggressive and destructive tactics.

As an aside, notice that Judge Lewis doesn’t say that litigation resolves disputes. That’s because it creates a winner and a loser or a loser and a loser, which is not the same as resolving disputes. In fact, litigation and adversarial negotiation can and do actually exacerbate the conflict.

My longstanding issues have to do with family law attorneys who treat all their clients as though they “have no choice but to use the court system” and the unnecessary use of aggressive and destructive tactics.

It has been my very efforts in pointing out such issues that have made me controversial and perceived by some as contentious. However, that makes sense, when you consider that contentious means “causing or likely to cause an argument; controversial.” After all, as Mosten points out, “the traditional family lawyer” typically fails to allow their clients to engage in self-determination through “adequate informed consent” with regard to non-adversarial approaches for handling their matters. Moreover, they don’t have any legal or ethical obligations to do so. As such, my efforts cause or are likely to cause argument.

I’d be lying if I said that it didn’t upset me that I’m considered controversial and contentious by many of those who practice within the field of family law. I’d also be lying if I said that I wasn’t upset by the deafening silence of so many of my fellow mediators and collaborative law practitioners when I’m personally attacked by members of the family law community, particularly when such attacks involve what has been described as a public lynching of me on the listserv for the Family Law Section of the Los Angeles County Bar Association. I understand their fear that coming to my defense might impact them financially, but I’m reminded of what Elie Wiesel said in his acceptance speech when receiving the Nobel Peace Prize, which was the following:

We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”

That being said, Wiesel was a peacemaker and did win the Nobel Peace Prize. As was set forth in the Editorial Notes of the publication in which both Mosten’s and Judge Lewis’ articles appeared one can be a medator or a collaborative law practitioner and not be a peacemaker.

The Editorial Notes from Andrew Schepard, the editor of the Family court Review, quoting Mosten, the guest editor of that particular issue, stated as follows:

"Peacemaking 'is a set of values, personal attributes, goals, and behaviors that guide our work.' It is a broader commitment than simply trying to avoid litigation. It is, in essence, finding meaning in the search for ways to improve the lives of the people we work with, help them repair their relationships, and encourage them to responsibly manage future conflict. That commitment can manifest itself in many ways and in many different processes."

In Woody's editorial note, after the quote that Schepard used, he said the following:

"Many mediators are peacemakers; many are not. Many peacemakers are mediators; others have very different roles, many of which are not neutral. Peacemakers can be judges, litigators, teachers, therapists, clergy, or peace educators.
Peacemaking means creating a sense of harmony and mindfulness within our own lives and in our work by harnessing our core values and best personal attributes. It means devoting our professional efforts to the improvement of the parties' individual lives, repair of their relationships inside and outside of their families, and the prevention of future conflict."
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