By Dr. Ken Broda-Bahm:
Litigation and trial have a long history of being seen as a kind of logical and verbal combat. Movies and popular culture have contributed to this view that attorneys are going to war on behalf of their clients, and the only holds that are barred are those that are barred by law. Absorbing that mindset, the attorney can see herself as a warrior for her client. That can help to make someone a fierce advocate, but it can also make it harder to see, understand, and negotiate with the other side. And with the vast majority of conflicts ending in agreement rather than in conflict, that mindset can downplay or delay the kinds of thinking that are necessary for a timely resolution.
Ultimately, there is a cooperative dimension to litigation. Each side is trying to maximize its own benefits, of course, and a strong part of that really is zero-sum. However, it isn’t naive to say that both sides also have a shared interest in an outcome that is fair and reasonable to all parties — a shared interest in justice. And particularly when you factor in the time and expense of litigation, when a case ultimately is going to ultimately settle, both sides have a non-zero-sum interest in getting to that settlement earlier rather than later. But the battle mindset can make that something that comes later and with greater effort, only after both sides are exhausted or under duress. I came across some research that adds some perspective, covered in a recent release in ScienceDaily, the work of University of Amsterdam social psychologist Carsten de Dreu focuses on experiments in which people are set up to invest in either perceived self-protection or cooperation. His work helps in framing some questions that matter to litigators resolving disputes.
What Prevents Cooperation in Litigation?
The research mission of Carsten de Dreu has ranged across many topics, including the influence of religion, and the contributions of Oxytocin, the brain chemical that contributes to human bondings. However, two broad factors emerge as barriers to cooperation in most contexts, and seem to apply well to a litigation scenario. Those two factors are fear and greed.
Professor de Dreu writes that, “‘Fear is almost always present as a brake on cooperation.” Why would fear prevent cooperation? Because parties fear being taken advantage of. In litigation, the defendant fears paying more than is due, and the plaintiff fears walking away with less than they should. There is a tangible basis to that fear, but also a more subtle psychological one: Neither side wants to be a sucker, and neither side wants to leave the other with an unearned benefit.
According to de Dreu, the other side of the coin is greed. Since we know that a negotiation might end in taking advantage of one side and leaving the other with an unfair benefit, it is always possible that the side benefitting from that could be you! In the back of every litigator’s mind is the possibility that they could end up with a windfall: an outlier verdict for a plaintiff or, perhaps, a walkaway for a defendant when they really should share some fault
How Can Litigators Find Common Ground?
In a setting that offers a choice between conflict or compromise, we aren’t always going to be able to escape the influences of fear and greed. A large part of that is simply human nature. But a smart litigator wants to at least be conscious of those influences and hold them in check. In my experience, there are two factors that help the litigator do that.
Knowing your best alternative to a negotiated agreement, or ‘BATNA,’ is essential to coming to a rational result in negotiations. In the lead up to trial, that alternative is trial itself. But what is the outcome of trial? That can’t be known with precision and certainty, but it can be known at a level that is better than your best- or worst-case scenarios, and better than your gut feelings. The best way to expand your knowledge is to test it. Even if the case is likely to settle, hold a mock trial with at least a few juries to see where they end up. That provides you with a reasonable basis for evaluating the rationality of your settlement, and getting beyond the fear and greed.
With knowledge comes the potential to share it: with your team, with your clients, making sure that everyone is realistic and everyone is on the same page, or at least the same chapter, when it comes to your chances in trial. But also consider how honesty might be useful in communicating with the other side. Instead of just fronting your litigation posture about your unassailable case, consider acknowledging some weaknesses. That will give you more credibility when you talk about your strengths and about your chances for resolution.
Inevitably, parties in litigation are still at odds, and until the moment a deal is signed, you’ll still have some aces up your sleeve. But the more you can acknowledge and set aside the fear and greed, and the more you can know and communicate honestly about your prospects, the better your chances for a fair and timely resolution.
Other Posts on Case Resolution:
- In Settlement, Account for the Sobering-Up Effect
- Don’t Forget About Happiness: The Settlement Series, Part Four
- Recognize the Weakness of ‘Hardball’ Rhetoric