This Month's Topic:
Is Your Client Sure That He/She Wants To Settle?
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.
Lawyers and mediators can help their client/participants make choices without overstepping their ethical bounds by making use of some of the following strategies.**
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.
**See also The Negotiator's Fieldbook (American Bar Association, 2006)