Thursday, January 28, 2010

I’m OK; You’re Irrelevant

In negotiation — whether mediated or not — we all like to win. See, e.g., "Fear of Being Outfoxed," posted December 24, 2009. Of course, if a settlement can be structured so that both sides win, so much the better. Unfortunately, however, "win-win" solutions are not always possible in personal injury cases, at least not in the classic sense envisioned by Fisher and Ury.* No matter how much the plaintiff and the defendant in an auto accident case, say, would like to turn the clock back and undo the accident, it isn’t going to happen.

Obviously, in one sense, both sides must benefit from any settlement. Each party must believe that paying or accepting the money on the table is better than not doing so, else they would not have agreed to the deal. But this benefit depends upon the coercive power of a future event that nobody wanted in the first place — a trial.

In the negotiation of personal injury litigation, nobody is likely to win in the sense that a settlement will make them better off than they were before the accident. The plaintiff will still have the injury; the insurance company’s bank balance will be lower after it indemnifies the defendant; and the defendant will likely see his or her premiums go up. In accident litigation, when life has given you those kinds of lemons, it’s usually too late to make lemonade.

Or is it? Let’s focus on plaintiffs. Injured plaintiffs can win by settling, but only when they fully understand that winning isn’t about undoing the harm, but instead is about giving them the opportunity to overcome the harm. Money won’t heal a permanent injury, but it will often open doors that were closed before. Winning in this way requires a change in mind set. The injured plaintiff must shift focus away from how much he or she has been wronged and, instead, concentrate on what it will take to overcome the consequences of the wrong. As I wrote in my last post of 2009: "The past has passed; the future beckons."

So long as the plaintiff’s attitude is "They’ll have to pay for what they did to me!" victory will be elusive. "They" are unlikely to ever pay much. Instead, it will likely be "They’s" insurance company that foots the bill. The plaintiffs who win are the ones who ultimately let go of their anger — or at least keep it well under control. The winners keep their eyes on the prize, focus on what’s good for them, quit worrying about what’s bad for the other guy, and look to the future.

* Getting to Yes: Negotiating Agreement Without Giving In (Boston: Houghton Mifflin Co., 1981).

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