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.