Thursday, December 3, 2009

About Settling Cases: Obstacles

While I would not use the kind of lanugague used below to describe the same problems, give

Achieving settlement, resolution through understanding psychological barriers from Your ABA: November 2009 a few minutes of your time.
According to Kathie, there are two overarching reasons why cases fail to settle: structural and institutional. Circumstances beyond either party’s control that subsequently prevent settlement are considered structural. On the other hand, institutional barriers are mental obstacles to agreement held by any or all the involved parties. Single-minded individuals whose egos overtake rational thinking are prone to creating this type of barrier.

While lawyers obviously cannot address structural barriers, institutional ones are not impossible for them to overcome.
Some other types of institutional barriers include:

* Reactive devaluation – Believing that when something is unavailable, it is more valuable;
* Construal bias – Perceiving one’s beliefs as objective reality, thus negating the beliefs of others;
* Equity seeking – Viewing one’s side as just and the opponent’s side as wrong, rather than seeing conflict as a result of mutual disagreement.

As with other barriers, resolutions include helping clients to understand and acknowledge their bias, asking them outright to discuss the weaknesses in their case, and finally, asking them to play the role of judge, as an objective party, are very effective. In doing so, clients concentrate on the weak aspects of their argument that may undermine their position rather than emphasize it.
Do you resemble the type that creates a barrier to a settlement? 

Maybe this will also help you understand how lawyers approach a settlement.  At least it may explain my method:  I do not think it is my job to say take or not a settlement but to give my client the pros and cons of an offer so that they can make a decision.  I think my clients understand very well when I say that they are getting a better than what a court could give them.

No comments: