Your Clients Would Rather Be Happy than Right

For the third time that day, the Bank's CEO was saying, "if I felt we'd treated her unfairly, I'd put some money on the table" and for the third time that day, the Plaintiff's attorney responded with one or more of the several legal positions he was certain would defeat the pending summary judgment motion.

My friend the employment mediator was telling me this story at the Starbucks located in the wide courtyard outside the downtown Los Angeles Superior Court.

"Two things kept nagging at me," he said. "First was the Bank's promise to pay the plaintiff $30,000 during her first three months of employment -- only $2,000 of which she'd received. Second, was her termination during her first week on the job. No one questioned the $30,000 promise, but everyone, including plaintiff's attorney, believed the subsequent written employment contract trumped the oral promise. Plaintiff's legal theory involved a complicated conspiracy by the branch manager and gender discrimination. The Complaint didn't even seek the $30K as damages."

I sipped my latte and smiled, knowing it would have taken me at least three repetitions of the CEO's "fairness" comment to get it as well.

"So what did you do?" I asked, as lawyers on their way to the morning calendar call surged around us.

"I finally said, 'what about the $30,000?' of course." He was grinning now, and shaking his head in that abashed way we do when we think we should have figured out the problem long, long before we actually do.

"And?"

 

 

 

"The CEO leaned over to his manager and said 'what about the $30K' and the manager just shrugged his shoulders. The CEO turned back to me and said, 'I'll put $30,000 on the table.' It took five minutes to get that $30,000 and we were in our sixth negotiation hour."

The lesson? Your clients don't really care about your legal position. They, like the rest of us, would rather be happy than right. When everyone feels that a negotiation or mediation result is equitable, then everyone is happy with the result and with their attorneys.

Professor Thompson (The Mind and Heart of the Negotiator) reminds us that the equity drive is so strong that people who are denied the opportunity to restore equity are particularly likely to simply ignore (or entirely devalue) the harm to or contributions by the other, while at the same time over-valuing the damage to, and benefits provided by, themselves.

Here, the CEO, was not searching to win the dispute at all costs. Those busy social science researchers have demonstrated that people prefer an equitable outcome to one in which they gain the advantage. If there is to be a discrepancy, of course, they prefer to be its beneficiary.

Finally, as always, relationship matters. If the relationship is neutral or positive, the equity-satisfaction principle will prevail. Only if the relationship is negative at the time of the negotiation will the parties prefer to be the beneficiaries of "advantageous inequity."

In summary?

First, your clients don't care whether your legal position is right or not. Nor do they care whether the result is legally justified. They want an equitable result, not the "correct" one.

Second, because your clients don't care about being right, you may feel free to explore options that your purely legal analysis leads you to believe are not viable.

Third, creating more bad feeling between the parties than existed when the litigation began, will increase your adversary party's desire for advantageous inequity. Improving the relationship at the time of the mediation (about which more tomorrow) will increase both parties' desire to achieve equity rather than victory.

The good news -- we're social creatures who desire social justice for the greatest number of people. That's something to feel good about.