Do You Really Want to Settle?

PGP Mediation Blog by Phyllis G. Pollack

People come to mediation to settle their disputes. Or, so they claim! But, do they really want to settle? In her monthly column, One Minute Negotiation Tips, published by the Los Angeles County Bar Association (Vol. IV, No. 9, October 2011), Ms. Linda Bulmash asks this fundamental question: Is Your Client Sure That He/She Wants To Settle?

The reason for the question is that most people base their answer on whether they think they will be happy or upset with the proposed settlement. As Ms. Bulmash explains:

“At the core of most people’s decisions regarding whether to take an offer is whether they believe they will happy if they get it or how upset they will be if they don’t get what they want. But studies have shown that people are usually wrong when predicting how happy/unhappy they will be … this has been termed “miswanting”. Attorneys and mediators are in a unique position to help their clients anticipate what their future feelings will be.”

To meet this challenge, Ms. Bulmash suggests that the following steps be taken:

“1. EDUCATE. Explain the phenomenon of “miswanting” to your client. As an example, you can point out that studies have shown that after the initial excitement, lottery winners are no happier than they were before they won.”

“2. HELP YOUR CLIENT IDENTIFY A DEFAULT HE/SHE CAN LIVE WITH.”

“3. USE FRAMING STRATEGIES. Remember that decision makers are strongly influenced by how information is presented. Since we tend to prefer a “sure thing” to a potential gain, frame the settlement as safer than a trial.”

“4. TIME OUT. Insist your client takes a cooling off period before making the final decision. Time away from the bargaining table makes it easier for people to control their emotions. Take your client for a walk.”

“5. HELP YOU CLIENT TO FOCUS ON THE FUTURE AND NOT THE PAST INJURY OR HURT. Ask your client to imagine waking up tomorrow having not settled and what the day would feel like. Now have him/her imagine what the day would feel like if he/she had settled.”

“6. RECOGNIZE THAT SOME CLIENTS HAVE A DIFFICULT TIME LETTING GO OF THE FANTASY OUTCOME. In some respects, settling is a mourning process. Your client has fantasized about the outcome of this dispute for a long time. The reality of settlement does not compare to the fantasy. Allow your client to express feelings about this.”

By doing so, a settling party will be more accepting of the settlement and not feel that she was forced into agreeing to it. She will not have regrets or remorse afterwards, having dealt with such issues beforehand!

. . .Just something to think about!

                        author

F. Peter Phillips

F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe. A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years… MORE >

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