Overcoming the Top 6 Unnecessary Barriers to Settlement
© 2013 By Bill Eddy, LCSW, Esq.
Nowadays, people involved in legal disputes are encouraged to settle their cases out of court. In fact, only about 5% of legal disputes ever go to trial – the rest settle one way or another. The parties are especially encouraged to reach out-of-court agreements when there may be an ongoing relationship between the parties, such as with divorcing parents, workplace conflicts, business disputes between contractors, and disputes involving government agencies and citizens.
However, regardless of the setting, many disputes which should be resolved out-of-court actually end up in court for unnecessary reasons. This is especially troubling as our courts face deep cut-backs and the parties face long delays before hearings and trials, while relationships simmer or become permanently broken. Parties and professionals should consider putting more effort into overcoming the following:
1. Lack of Knowledge of Legal Realities
One of the most common problems for the parties to a legal dispute is the unrealistic belief that they will certainly prevail in court. This is often based on general impressions of the law from the news media, Court TV or movies they’ve seen. Sometimes it’s based on what neighbors’ or friends’ circumstances have been, when their own situation is really quite different. In reality, the law is fairly narrow in most cases. Judges and juries often have very little discretion, because the law is clearly defined – you just need to find out what it is.
For example, some employees who have lost their jobs seek compensation for “wrongful termination” and other claims. This is a narrow legal area in most places. Employment is based on “at will” laws in many places (especially in the U.S.), which means that an employer can terminate an employee “at will” with no justification necessary. This often happens when budgets are cut and they arbitrarily lay off one employee and keep another – even though both may be very similar and both did a good job. Likewise, most employees can leave their jobs without needing a good excuse – as long as they give enough notice in advance (typically at least two weeks). Of course, the rules are different if it involves discrimination of a group or the violation of a labor contract.
Another common example is that many separated and divorcing couples expect their child support or spousal support to be similar to other families they know. Yet child support and spousal support laws are based on the specific situation of each family. Sometimes a parent with a high income pays very little child support, because the other parent also has a good income or because both parents have a similar amount of parenting time. Or a parent may feel like he or she is paying a lot of support compared to a neighbor, but the neighbor might not get bonuses and might have large healthcare premiums compared to the parent, which lowers their obligations.
It’s common for one person (sometimes both!) in a dispute to say “It’s just not fair!” But it may still be the law. (A famous judge once said that the law isn’t based on logic, it’s based on experience – the experience of many people that came before.)
And laws change. I once was mediating a civil dispute involving some complicated utility regulations. There were two parties and two lawyers. The lawyers strongly disagreed on what the regulations said. I suggested that I meet with just the lawyers for a few minutes to see if we could figure this out. When we met without the parties, one lawyer quickly figured out that the other one was working from a book of regulations that was two years out of date – it had recently been updated and that lawyer didn’t realize it. They then told their clients and the case immediately settled. Imagine if we hadn’t figured this out and they went to court, spending a lot of money to prepare arguments and evidence.
2. Overconfident Parties
Nowadays many people feel they can represent themselves in court, but they actually don’t have much knowledge of what the law really states. Laws usually have exceptions, and then exceptions to the exceptions. The only way that someone may know this is to talk to someone experienced in the law as it relates to the specific subject – and to the specific court. Different judges and different courts in a state may interpret their own laws differently in areas where they have discretion.
To overcome this problem, individuals should at least get a consultation with a lawyer or hire a lawyer to represent them. In many areas of the law, the way the courts treat a subject may be well known to lawyers but not to the average person. For example, someone might look up the law on the Internet and become convinced that they will “win” in court. The law may appear very clear-cut. However, what they don’t know is that the judge in their case may have a lot of discretion on the subject or that there are other laws that seem unrelated but actually trump the law you looked up.
3. Overconfident Lawyers
Neuroscientists have determined that emotions are contagious. We tend to mirror each other without even realizing it. When a lawyer and client really agree and get excited about their point of view, it doesn’t mean they are right. But this is the stuff that overconfidence is made of. You see this when political parties spend too much time talking to themselves, reinforcing their own points of view and losing track of the fact that there are no guarantees of victory no matter how right you think you are.
When a party and/or their attorney become overconfident, they dig in their heels in settlement discussions and proudly state “We’ll see you in court.” They believe with certainty that they will win. It’s often because of how strongly they feel, rather than based on legal realities. Some people have narcissistic personalities, which means that they over-rate themselves – unrelated to the facts of their cases. I saw this twenty years ago in law school, when the students who were over-confident at the start ended up getting the worst grades and many of the students who doubted themselves worked the hardest and got the best grades.
But there’s another type of over-confidence that some lawyers have: It’s the over-confident belief that the other side won’t agree to a reasonable settlement and will have to be taken to court. So the lawyer does not make much of an effort to settle the case. Yet we have to watch out for our own “self-fulfilling prophecies.” I have been pleasantly surprised many times, as a lawyer and as a mediator, when someone I thought would never reach a reasonable agreement actually did. Many people who were not expected to reach a settlement can end up doing so with the assistance of a good mediator and good lawyers. Don’t give up before you start! Stay open-minded.
Most lawyers know that there is always a chance they will lose. In the adversarial court process, there is a winner and a loser – so half the parties are going to lose even though both parties may believe they should win. This means that approximately half of the time a party who goes to court will do worse than they would have if they accepted the other party’s last settlement offer. Somebody has to lose in court, whereas a settlement in mediation or other collaborative or cooperative process gives the opportunity for a “win-win” situation – although it may not mean winning “big.” Sometimes the fantasy of winning big clouds a lawyer’s (and client’s) reasonable thinking.
To overcome this overconfidence, think about whether it’s better to reach a settlement out of court than to risk losing big in court. There’s always that risk, no matter who you are.
Ask lawyers you consult with or retain:
A. To show you the laws and have them make sense to you.
B. Ask what other laws there are that might trump this one. Ask if they checked to see if the law was updated recently.
C. Ask what your chances of prevailing in court are based on percentages, not absolute certainties.
Some lawyers will even tell you: “We have a 70% chance of prevailing in court – so you might want to accept a settlement if you can get 70% of what you want.” That’s more reliable than the absolute certainty that some have.
4. Friends and Family Say “Fight; Don’t Settle”
I have seen this happen many times, when friends and family get too involved in a legal dispute. They often are just trying to help, but their enthusiasm may build an unnecessary resistance to settling a case and actually make it harder for you to move on with your life. Perhaps friends and family didn’t like the other party in a dispute, but this doesn’t mean they should drive the case. The person who is the actual party in the legal dispute should be respected as the decision maker in terms of settlement.
To overcome this barrier, let your friends and family know from the start that the decision is up to you. Tell them that you appreciate their encouragement and suggestions, but that you have studied your alternatives and concluded that a settlement should be seriously considered as the best way to move forward in your life. Ask them for their emotional support without strings attached - regardless of what decisions you end up making in your case. In most cases, this means reaching a settlement which will bring peace to your life. This doesn’t mean “giving up” or “giving in.” If you have strong knowledge of your legal options, you should be able to make a rational decision, not one based on pressure from family and friends, or your own desire to please them. It’s your life, not theirs.
5. Refusal to talk to the “other side”
Emotions sometimes take over, and it’s easy to consider refusing to talk to the other side. They say that one of the key factors in whether a case settles or goes to trial is whether the parties and lawyers can simply talk to each other. Of course, in difficult cases it’s important to have help with this. That’s where professional mediators can be a big help. They can help you slow down and manage the difficult conversations that you wouldn’t be able to do on your own. Collaborative professionals can also do this, such as in Collaborative Divorce teams.
Of course, if the other person is extremely intimidating or has a history of domestic violence or other abusive behavior (controlling finances, manipulating friends and family, etc.), you might need more of a buffer between you and that person. Sometimes doing phone mediation or meeting in separate rooms with the mediator can help. The idea is to communicate to the maximum possible under the circumstances, so that you treat each other as human beings and reduce the hostility and barriers between you.
In the worst case scenario, have an attorney communicate with the other party on your behalf. But pick someone who can stay calm and respectful. You can bring out the best or the worst in a difficult person, by how you treat them. To overcome this barrier, get assistance in reaching out to the “other side” in the best way possible under the circumstances.
6. Making and Hearing Proposals can be hard work
Sure, it takes practice and sometimes hard work to make your proposals and to hear the other person’s proposals. But this is where most negotiating sessions begin. Focus more on understanding what’s important to the other person, rather than reacting to the actual words they used. And try to make your proposals focus on Who, What, Where and When. When you hear a proposal, try to respond by saying: “Yes.” “No.” or “I’ll think about it.” This will help the other person be less likely to become defensive. Practice helps – you can do it with a friend or family member.
Just keep in mind, that if you make reasonable proposals and respond respectfully to what the other person says, you just might be able to reach an agreement and get on with your life. Also, remember that helping you make proposals and respond to them are skills that lawyers and mediators have known for many years. You don’t have to do this alone. Use your resources and plan ahead. Bringing several proposals with you to a negotiation or mediation session can really make it easier on you. You can discuss proposals in advance of such a session, so that you are less stressed during the session. You can overcome the awkwardness of making and hearing proposals by: getting assistance, planning ahead and reminding yourself that resolving your disputes with proposals and agreements will save you a lot of time, stress and money in the long run.
Of course, there are times when it may be appropriate to go to court if the other party is unwilling to seriously consider a reasonable settlement given the realities of your case. But don’t go to court based on the above six unnecessary barriers. Get good advice and get a second or third opinion when you’re not sure – and give settlement your best effort. There’s nothing to lose from trying.
Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.