Atty:    “What’s the problem. It’s a really good offer?”

Client: “I know.”

Atty:    “You know it’s reasonable, even close to what you wanted.”

Client: ”It’s just that–“

Atty:    “Just what?  I don’t get it.”

We’ve all been there.

Finally, you get the right offer.  It’s fair.  It’s reasonable.  It makes good sense.  And your client’s not “crazy.”  They haven’t been looking for millions on a two-bit case, or to escape for pennies on a case of genuine liability.  They’re reasonable and have been throughout.  Yet, they still can’t say, “Yes,” to an obviously reasonable offer.

Why is that?

While there are several possibilities, let’s focus on one.  In his masterwork, Love’s Executioner, psychotherapist Irvin Yalom observed:

Decision making invariably involves renunciation: for every ‘yes’ there must be a ‘no,’ each decision eliminating or killing other options.

What if we apply that insight to settling a litigated case.

Yalom’s insight suggests that for a litigant to say “Yes” to a settlement offer, it means they’re invariably also means they’re saying, “No” to every other option or possible outcome in the case, and, more importantly, to everything that litigant feels those other possibilities emotionally signify or imply.  Which means, your client’s difficulty saying, “Yes” to a particular offer may have nothing to do with whether they appreciate how reasonable it is.  It may have nothing to do with the merits of that offer at all.  Instead, it may simply be that your client just can’t bring themselves to say, “No” to all of the other possible case outcomes and what your client feels they emotionally mean.

For example:

For a plaintiff to say “Yes” to a pre-trial settlement they might feel like they’re also saying, “No” to things like:

  • The possibility, however remote, that I might hit the jackpot, and win enough money to finally and forever escape all the frustrations and disappointments of my current life. I’ve read about cases like that.  Sure, it’s a longshot.  But it happens.  And how many other chances for something like that is a person like me going to get?  So if I settle now, even for a reasonable amount, it means I’m permanently saying, “No” to any possibility of ever escaping this life.
  • If I go to trial, it proves I have character, that I’m a person who stands up for what they believe, win or lose. That’s who I want to be.  That’s how I want everyone else to see me.  And if I settle now, even for a reasonable amount, it means I’m saying, “No” to being that person.  It means I’m just another whiner who can be bought off.
  • So long as I don’t settle, I’m an important person. People in suits and fancy offices care what I have to say and treat me like I’m somebody special.  They call and write and hang on my every word.  Trial’s still a long way off.  And if I settle now, even for a reasonable amount, I’m saying “No” to being somebody important.  It means I’m a nobody again.

For a Defendant, saying “Yes” to settlement may mean saying “No” to things like:

  • Everyone respects a person of principle, someone who’s willing to fight for what’s right, regardless, someone who doesn’t just talk-the-talk, they walk-the-walk. That’s who I want to be.  It’s how I want to be thought of.  And if I settle now, even for a reasonable sum, it means “No,” I’m not that kind of person.  It means I’m just another sell-out.
  • I want to be known as someone who’s not a coward, who’s not afraid. Someone who won’t be pushed around, not by the plaintiff, certainly not by a lawyer.  I’m not afraid of trial and I’m not afraid of letting the jury judge me and the plaintiff, head-to-head.  But if I settle now, even for a reasonable amount, I’m saying “No” to being strong, and everyone will think I was simply too afraid to go to trial.

We could obviously think of dozens of other examples, but the point is this:  In thinking about settlement its important to realize that every “Yes” is also a “No.”

Granted, it’s a bit Orwellian.  But Yalom’s is a powerful insight and an undeniable truth — that the reason some litigants have such difficulty saying, “Yes” to a reasonable proposal has nothing to do with the proposal itself.  It’s a reflection, instead, of their reluctance to say “No” to all those other possibilities and what they feel each means about the kind of person they want to be.  Those feelings may not be rational.  But they are legitimate.  And they are real.  And they frequently and unfortunately prevent litigants from saying “Yes” to reasonable settlements they wish they had the inner strength to accept.

As mediation counsel, how can you use Yalom’s insight?

First, remember that if your client resists a reasonable settlement proposal, it may have nothing to do with the proposal itself or whether your client appreciates its reasonableness.  That means accusing your client of having abandoned their common sense or trying to explain over and over again the reasonableness of the proposal on the table may be entirely misdirected efforts, unlikely to move your client any closer to settlement.  Instead, realize that their reluctance may stem from their emotional inability to say, “No” to all the other possible outcomes or implications of the case.  So, turn 180 degrees away from the proposal itself, and redirect your discussion and efforts instead to those “No” issues, and helping your client dispose of them, realizing that until your client feels comfortable saying “No” to all those other issues, they might never be able to say “Yes” to the proposal at hand.

Second, start that process well before the time when reasonable offers get exchanged.  Work with your client and the mediator beforehand to mute as many of the those unreasonable “No” emotions and possibilities as possible.  This includes talking frankly to your client about what a settlement means (or really doesn’t mean), about the kind of person they are and will be regardless of this case, etc.  Start this dialogue early, before you ever get to mediation, then continue it with the mediator every step of the way.

Third, select a mediator who understands this insight.  Select someone you’re confident will not only work with you and your client on this issue, but (just as important) will also be able to invoke this insight with the other counsel and their client, so that when your negotiations do inevitably get to that reasonable point, you don’t lose a good settlement simply because one side or the other is unprepared to say “No” to the emotional implications of accepting a reasonable deal.

David Simpson

(Originally published, L.A. Daily Journal, 07/19/13 | download pdf)