In my last blog post, we were drifting in a sailboat aimlessly a few feet from the shore and realized that this is not how we should approach our legal matters. I posed a series of questions to help clients begin to identify their optimal goals. In this post, we will look at phase 2 of the goal setting process — realism.
When I serve as a mediator, it strikes me how two parties can look at the same dispute and come to opposite conclusions as to their chances of prevailing in court. Recently, I mediated a complex insurance dispute with sophisticated parties and experienced legal counsel. Each party and their lawyers seemed to truly believe they had a 90% chance of winning. How is this possible?
Were the lawyers building up the case and telling their clients what they thought their clients each wanted to hear? It is possible. However, in this situation, as I met each side separately, I experienced how that lawyer only focused on facts that supported their position. When I pointed out other provisions in the contract that went against their position, I could see lightbulbs going on. It was as though they had never even noticed those adverse provisions. This is classic confirmation bias and the consequences can be devastating.
Whether or not the lawyers were telling their clients what they thought their clients wanted to hear or not, is a subject for a future blog post. The point I want to make in this post is that it is critical that both lawyer and client fully understand and appreciate all the factors that go against your position so you can effectively size up the strength or weakness of your position. If you go into a battle believing you have the firepower to prevail and it turns out you don’t, then the results will be disastrous.
Once parties get realistic, resolution is easy. In the complex insurance dispute discussed above, they had been fighting for 2 years. After they realized their chances were in fact 50/50, the parties settled after only 4 hours of mediation.
In the next blog post, I’ll delve into what you as a client need to do to make sure you are getting a realistic perspective from your lawyer.
A few years ago, my client took me sailing. I am a novice and relied on his expertise, which for some reason was sorely lacking that day. There were a number of technical difficulties to start. After an hour, we finally left the shore. We did not get very far before we ended up drifting here and there without any clear destination in mind. I thought to myself, is this what I drove 2 hours for? Of course, I have been able to chide him for years about this experience, so it ended up being worth it.
Unfortunately, when it comes to legal matters, too often clients and their lawyers manage deals and disputes in quite the same way. There is a lot of drifting and lack of skill, and it ends up not being a laughing matter.
In dealing with any legal matter, having a crystal-clear goal and destination is essential. Anyone who has been embroiled in a legal dispute or contentious transaction knows that the emotions of fear and anger are ramped up. When these emotions are ramped up, there is a strong tendency to be reactive and impulsive. This type of behavior rarely suits your ultimate goal.
To prevent such reactivity, it is important to ground your thoughts and feelings by asking questions such as “Is my goal crystal clear? Does my immediate goal support my long-term goals? If I achieve my goal, how will it benefit me? Is this the best goal possible for me or my business?”
By asking yourself these questions, you will be able to set a clear destination for your legal matter and avoid unproductive and costly drifting.