Litigation arouses competition, an urge to win. Some lawyers have a hard time dialing it down even when the parties want to settle. Many lawyers overemphasize their role as zealous advocate at the expense of other, equally important roles – adviser and problem-solver. Lawyers are not the only ones who possess the urge to win. Many parties allow themselves to get mad enough to elevate “principles” over rationality. They fail to heed warnings from experienced counsel.
Granted, when a problem has no other potential solutions, litigation is the only option. But “failures” in mediation may be false when lawyers and parties don’t negotiate enough to know whether good outcomes were within reach. Often, there is no plan for the mediation — other than to react negatively to their opponent’s proposals on the basis that movement was not generous enough or came too late. Some participants in mediation don’t know when they’re close to getting a good deal. They fail to use their mediator.
As a result, some plaintiffs receive less in mediation than defendants are willing to pay and some defendants and insurance carriers pay more than they need to in order to resolve a case (usually on the eve of trial after spending a significant sum in costs or by way of a jury verdict). The spread can reach six figures or more. This is not supposed to happen, of course. Parties spend significant resources in litigation aimed at maximizing their economic positions (at least in theory). Nonetheless, parties fall short more frequently than they, their lawyers and insurance carriers realize.
In fairness, there are times when parties and counsel need to take a tough stance at the table. Some clients need to know that counsel will not sell them short. Some parties want their demand or offer to “rattle the other side’s cage,” but they will move if and when the other side reciprocates. Some lawyers and carriers fail to evaluate a case accurately, but they give themselves “room” to bargain (perhaps too much room when it fails to motivate the other side to make meaningful moves). Plaintiffs are deeply invested in the outcome of personal injury disputes, whereas insurance carriers and institutional defendants are usually driven by the economics of prior cases. “It takes two to tango,” as they say. Both sides need to have the same intention to “talk turkey,” otherwise mediation will waste time and money and may frustrate efforts to resolve the case later on. Good mediators will look into this issue and do something about it before the mediation.
In my view, these dynamics are part and parcel of mediating most conflicts. The urge to win, however, is rooted in the professional identities of lawyers and insurance adjusters. It also manifests in many parties. It’s tricky because it affects how we perceive information. Many participants in mediation reject evidence that contradicts what they want to believe. “Motivated” reasoning is common. When we encounter evidence that supports our belief, we ask ourselves, “Can I believe this?” The answer is usually, “Yes!” But when contradictory information is presented, we change the question into, “Must I believe this?” That answer is usually, “No, look at what supports my belief instead.” Litigation teams act in ways similar to individuals. They often create echo chambers for themselves where groupthink ignores or rejects information that counters what they want to believe.
Participants make overly confident predictions of litigated outcomes in just about every single case. Many mediators do it too. Unfortunately, the process is often reduced to a narrow but lively power struggle over outcome predictions. In my view, no one really knows and, more important, it doesn’t matter. The deeper question is whether participants want their predictions to be “right” or accurate. Most people want to be right. They want their story validated by a judge or a jury. Accurate predictions, however, require diverse perspectives, internal dynamics that encourage contrary points of view and a plan that avoids dangerous outlier outcomes.
To me, life is a bell curve. Once in a while, big risks generate impressive results for plaintiffs and defendants. Sometimes one side’s trial strategy prevails over another. We must admit that luck influences the administration of “justice” — which judge will preside, which jurors serve, how witnesses perform on any given day, how jurors perceive evidence and how they will apply it to the law, the manner in which they negotiate among themselves and so on. When good luck happens, we take credit as if we performed well. But when bad luck strikes, we reassure ourselves with, “I was unlucky.” Lawyers who honestly evaluate their ability to predict the outcome of a prior case can improve their ability to accurately predict the next case.
Of course, lawyers need to have an urge to win. But it can be dangerous when overplayed. It is a self-serving bias that hijacks the ability to identify and manage risk. In my view, zealous advocacy has its limitations when trial outcomes are compared to what was achievable at the table. I don’t think clients are well-served by subjective assessments of risk. Parties, lawyers and insurance adjusters should seek diverse perspectives and ask themselves, “How can this go wrong?” In plenty of cases, the urge to win backfired and the “justice” that was within reach was lost.
Jeff Trueman is a private mediator and can be reached at firstname.lastname@example.org.