Why People Do Not Settle When the Agreement is in Clear View?

Employee A worked happily and successfully for corporation B. A was the golden star of the company. Situations changed, money got tight. A became unhappy with the job viewing it as no longer creative but humdrum. A would have like to have left, but issues like benefits, family and money impeded A. B became unhappy with A’s work believing A was working as if the situation had not changed. This unhappiness of both A and B festered. Finally, fed up, B found an unjust reason for firing A and they cloaked it with complexity. A sued and after about a year, they settled monetarily and agreed to behave as if this never happened aka nondisclosure. Isn’t it a shame that in the beginning of the unhappiness that A and B did not get together and craft a mutually agreeable solution?

A worked for a company B for 30 years and had been offered a variety of tasks. Suddenly, A was no longer being offered tasks. In actuality, B desired “fresh blood.” They wanted their brand to appeal to younger folks and not be entrenched in the past. B’s requests to A went from 24 offerings per year to zero. B created a variety of reasons for the decrease to zero.   Aging A did not need 24 offerings anymore and would have been satisfied with 1 or 2. But B stuck to zero offerings leading A to file a formal age discrimination complaint. Again, years before the formal complaint, A and B could have met and reached an amicable agreement.

Introduction

Conflict management research has been clear: The sooner one resolves an argument or conflict, the easier it is.

Example: A criminal mediation program began in Ohio in the 1970’s, funded by the US Department of Justice. The original design procedure was that law students would review the crime alleged directly before arraignment and if deemed mediate-able a note would be placed in the jacket for the judge to refer it to the mediation program. The mediation success rate hovered around 70%. This procedure was then revised so that the students would review the filed charges at the clerk’s office before arraignment and if appropriate, referred to mediation. Success rate rose to 75%.  In another procedural revision, the law students would do criminal intake at the prosecutor’s office and refer cases to mediation before any filing. Settlement rate rose to 80%. Another revision allowed residents to request mediation directly and for police to hand out “mediation tickets.” Settlement rate again rose to 95%.

This all makes sense. Most people would be more in the negotiation mood before the police are called, before charges are filed, and before a court appearance. This means if one is an effective conflict manager they will intervene in an argument, dispute, or disagreement as soon as possible when it is often easier to find a resolution, aka “nip it in the bud.”

The question asked in this blog entry is why so many folks do not settle a dispute when the agreement is clearly visible and attainable?

Why Parties Do Not Settle Early

Referring to the case employment examples above, it is often thought that when a company wants to fire an employee, that employee may also be unhappy. They could simply meet, reach a mutual agreement and avoid the firing and the lawsuits.  Why does this not happen?  There are a variety of reasons:

Conflict Avoidance

Research shows that 98% of people hate conflict. They hate it so much that they avoid it, even if the conflict is directly in front of them. Instead of early intervention, they hope it will go away. Most of the time, it does not. It festers. It deepens. Parties become entrenched.   Settlement becomes almost impossible.

Becoming Positional

Often people will take stands on what they will or will not do. Then they feel as if they need to back up those positions or stick with those positions of Yes or No. In reality, they should be looking under those positions to their underlying interests. What do they really need or want? Some of these needs may simply be for the conflict to be resolved and the stress to dissipate.

Too emotional

People are persuaded by emotions, logic, and values. Often, in conflict, people become too emotionally invested. Logic and values should guide them towards settlement and yet their emotions are not managed. They control them. They blind them.

Everything is negotiable world.

A favorite expression of many is that everything is not negotiable. They seem to think this phrase, this stand, gives them power. Often, it simply makes things worse so that negotiation is more challenging.

A culture of win or lose.

Some folks are brought up in the culture of Zero-Sum gain. If one wins, the other loses.    Compromise is not included in the equation. They do not see compromise as co-promises.   They think compromise means capitulating. They don’t seem to value partial victories or half measures.

Construing situation as more important than it was.

Sometimes, parties view the situation as larger than it is. They often fear that precedent will be set. So, often the importance of this situation is exaggerated. Settlement may not be noted by any person except the parties involved.

Unrealistic about their situation and the legal system.

Parties often become entrenched in the situation and listen to only those who agree with their side or accept only supportive information. In other words, they often “cherry pick.”   Further, they often use inductive thinking rather than deductive; that is, they begin with an assertion and then find ways to support that assertion.

All is unreasonable about something.

This is an old truism that means that each person can be irrational about a particular issue.   Maybe it connects to something from their past, their experiences.

• A is obsessed with trains, streetcars, rail vehicles. If the situation or the conflict is about this issue, no amount of logic, spreadsheets, danger, low ROI will persuade A to vote against trains.

• B loves small planes so the same as above. B, regardless of the argument will favor small planes.

• C despises royalty, thinking they are basically welfare cases, living off the sweat of the Commoner. C will always vote against the royalty despite any evidence presented about tourism dollars, peacemaking, etc.

• D super strongly believes that tipped workers make more money via tips vs raising minimum wage regardless of any arguments otherwise.

• E despises tattoos, associating them with stupidity, lawlessness, criminality, self-mutilation, poor judgement. So, no argument about independent decision-making or body art is going to persuade E.

So, if the situation, the argument, the conflict involves an area where a person is completely illogical, unreasonable, settlement will be elusive.

The benefits of not settling.

For about 5% of the cases, the party will not settle because they are reaping some benefits on not settling. Maybe if they settle, they will be out of a job. Maybe, settling, means more work.

Personality plays a role. Each person has a unique personality based on their birth and their experiences. This personality plays a role in every transaction. Sometimes, this role is positive, negative, and interesting. One example would be a Dominating/Competing personality. This is one who wants to win. This fixation on “winning” may impede settlement.

Spiritual or religious beliefs are often challenging to square with logic.

Imbalance of power.

Finally, Ohio Attorney, mediator, professor lists imbalance of power as a reason for impeding at least immediate settlement. “It may be that waiting to decide could help level the playing field.  For example, an abused spouse may have more power after authorities become involved or a worker may have more power after filing a complaint with a government agency or filing a lawsuit.”

Actions to Encourage Settlement

Use of outside neutrals to evaluate the situations. There are a variety of dispute resolution processes that use outside Neutrals to evaluate the case or the situation.

Summary Jury Trials (SJT): This process is often used in large cases and can be public or private. So, possibly there is a situation that if it went to trial might take several months.   Parties agree that the entire trial will be fake and abbreviated. By fake, this means that the trial will be artificial, will not be controlling. Each side presents their entire case in an abbreviated way. For example, instead of calling of 25 witnesses, they call several of their most powerful and then merely summarize what the other witnesses will say. The process often calls for the lead decision-maker such as the CEO to be present.

The settlement might be as high as 99%. Sometimes during the SJT, this is the first time the CEO has actually heard their side of the case. Often, there is surprise that their side is so weak and a settlement is ordered.

Sometimes, they wait for the “fake” jury to come back with a decision. The parties are then allowed to question the jurors about the strengths and weaknesses of their case. Often the settlement is ordered.

US Federal Judge Richard Enslen was a great promoter of SJT.

Mini-Trials. Possibly Los Angeles based Litigator Ronald L. Olson in the TRW case created the Mini-Trial. It works very similarly to SJT, but involves a “fake” judge instead of a “fake” jury.

Early Neutral Evaluation (ENE).  ENE can be private or public. ENE involves a process of securing a subject matter expert to hear objectively both sides and offer their expertise, especially of the likelihood of success.

In all three of the processes described above, a person not involved in the situation offers a realistic, often logical and unemotional view of the situation. This same process can be used involving trusted colleagues inside and outside the situation.

Agile dealing with personalities. There are a variety of personality types. Some believe you are born with personality; others, believe personality changes as one lives. It is probably both.

Many people pretend one can keep personalities out of conflicts, negotiations, etc. Not really. One needs to recognize these personalities and realize this could be one of the reasons settlement or conflict management is so difficult. Thus, an effective conflict manager needs to be agile, flexible in dealing with each personality type. Two examples:

When you have conflict with a Dominance Personality Style.

D personality types prefer a straightforward approach and respond well to direct confrontation. When problems with a "D" style arise, it’s best to sit down and have a conversation right away. Since "D" styles can sometimes be impatient, don’t beat around the bush. Get to the heart of your problem immediately. When discussing the problem, it’s best not to bring emotions into the discussion.

When you have conflict with a contemplative/conscientious.

C personality styles can be sensitive, and hate to be criticized. They will often feel resentment when directly confronted. As a result, when discussing problems with a C, don’t frame things in terms of personal criticism (“I don’t like it when you…”). Also, try not to make a C style feel ambushed. When you need to talk about a problem, schedule a time to talk later in the day. This will take away the element of surprise and give the C time to formulate their thoughts. When talking with a C type, always be sure to explain yourself well. Don’t be vague. Allow time for discussion and be ready to answer questions. DISC personality type C is very good at problem-solving,

https://peoplekeys.com/what-is-disc/

Wise Assumption: People do and say things that make sense to them at the time.  If people cannot understand why a party is not settling or continuing a conflict seemingly unnecessarily, one needs to put themselves in their shoes. What’s going on here? Is it a financial problem? Is a value problem? Maybe that person believes that one should only rewarded for hard work, not easy gives. Once one identifies the real issue, by being creative, one might adjust the approach to settlement of the conflict.

Dealing with people who are benefiting from not settling. An effective conflict manager puts their head on the shoulders of the party aka they walk in their shoes to identify the benefit.  Once the benefit is identified, the party needs to figure out a way to sustain that benefit another way or ameliorate it.

Conclusion

Ohio friend and retired state government leader Jill Goldhart gives an excellent conclusion.  “Based on my experience, personality, plus their life experiences, play a major role in how individuals respond to conflict. I know of many folks who avoid conflict, allowing issues to fester. Fear and distrust often play a major role, fearing what will happen during a confrontation. People also become positional, not listening to factual information and escalating issues, emotionally. People who are involved in long relationships often drag in a whole litany of rights and wrongs from past years and because of this escalate the situation. Some are even trying to vindicate their feelings. Other folks list certain issues as “non-negotiable” even if they are unrealistic. The reasons for non-settlement or difficulty in settling are many and demands much research and intervention.”

Resources

The Conflict Resolution Training Program, Leader’s Manual

ISBN:  0-7879-6077-2   Prudence Bowman Kestner and Larry Ray

Mediation Manual, Prudence Bowman Kestner and Larry Ray, self-published.

School Conflict Management Resource Guide,  Prue Kestner and Larry Ray, self-published.