The “Giving Up” Factor, a Mediation Myth
“Do we see eye to eye on this matter?”
“Don’t you think you’ll just settle anyway?” For most litigants, the very mention of the word settlement (and its inevitability) in the middle of a hard-fought lawsuit evokes feelings of anger, frustration and confusion. A tiny percentage of cases feature one side with significant motivation to settle early, fearing, for example, bad press, bad legal precedent, or the uncovering of more bad facts. But the bulk of civil lawsuits that laboriously wind through state or federal court feature parties wholly invested in the fight and in the outcome - an outcome where their side comes out on top.
To capitulate prematurely before having their “day in court,” which society has encouraged them to believe is the fair way, indeed, the time-honored way, to resolve a legal dispute, spells anathema to “must win” litigants. Even as legal fees pile up, endless discovery saps resources, and initial or partial judicial rulings confuse, rather than elucidate what’s at stake, parties become more entrenched in the notion of winning and less inclined to settle.
Enter the mediator, perhaps court-appointed, perhaps agreed-upon by counsel. Hearing from the mediator that “ninety-eight percent of all cases settle before trial” or some equally dubious statistic does little to calm an angry party. “Well, I’m in that 2% that’s going all the way,” is one common response from parties who feel, or in fact are, being forced to discuss settlement. At the heart of the dilemma is the unappealing vision that someone with no skin in the game is going to force them to give up on their desire to be made whole, on their need to get even, on their choice to fight back, to prove a point, to stand by their principles. No, they will not give up and “just settle.”
Missing from the thought process of a party who vows to never give up is the likelihood that his opponent doesn’t relish giving up either. Neither side is willing to take on the label of “loser” from some entity or process other than the court. That’s the moment an effective mediator starts talking about what life after the lawsuit might look like, that is, if this dispute were gone from your life today, what would you gain?
While money remains the nexus of civil litigation - who owes, who pays, who suffers most - it is the emotional balance within each side and each person involved that is most crucial to resolution. Doing away with the antiquated notion of “giving up” jump-starts the process.