An article in the New York Times business section on August 8, 2008 discussed a recent study of civil lawsuits and the decisions that litigants make about whether to settle a lawsuit before trial, and for what amount. In “The Cost of Not Settling a Lawsuit,” Jonathan D. Glater described a study that found that plaintiffs frequently perceive their suit to be to be of greater value than it is. This misperception appears to lead plaintiffs to reject settlement offers from defendants that are in fact better than the amount awarded to the plaintiffs at trial.
One question raised in the article is whether plaintiffs’ attorneys are not making adequate explanations of the risks and weaknesses in their clients’ cases or whether the clients themselves refuse to accept that their own view of the strength and righteousness of their cause may not be shared by everyone, including a judge or jury.
A mediator can help with the “reality check” for plaintiffs and defendants. At times the attorney who has advocated for a client through a lengthy and contentious pre-trial process is in a difficult position when engaging in negotiations. First, the attorney must accurately evaluate and accept the weaknesses that he or she has tried to minimize. Second, the attorney must explain those challenges and the risks they present to a client who does may resist compromise after months or years of fighting. A neutral third-party can help parties, in a confidential and informal setting, to carefully consider whether continuing the fight is truly in their best interests.