When faced with taking or not taking an offer, most clients make their decisions based on how happy they will be if they get what they want 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 or unhappy they will be—and the term for this is “miswanting.” Attorneys and mediators are in a unique position to help their clients anticipate what their future feelings will be.
Without overstepping their ethical bounds, lawyers and mediators can use the following strategies to assist their clients in making choices. **
* *See also The Negotiator’s Fieldbook (American Bar Association, 2006).
- EDUCATE. Explain the phenomenon of miswanting to your clients. As an example, you can point out studies showing that after the initial excitement, lottery winners are no happier than they were before they won.
- HELP your clients identify a default they can live with.
- 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.
- TIME OUT. Insist your clients take 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 clients for a walk.
- GUIDE your clients to focus on the future and not the past injury or hurt. Ask your clients to imagine waking up tomorrow having not settled and what the day would feel like. Now have your clients imagine what the day would feel like if they had settled.
- 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 clients to express their feelings about this.