Nearly every case settles. One explanation is that litigants would rather not put a major decision in the hands of a judge, jury or arbitrator. As qualified as these decision-makers are, as integral as they are to our legal system, they are necessarily one step removed from the dispute. Further, they are generally provided with limited, zero-sum choices for reaching a result. This explanation is sound; maintaining control through settlement, even though it involves compromise, is usually preferable to the “all or nothing” result obtained by third-party decision-making.
But there is another psychological factor at work. Over time, litigants may appreciate that they share responsibility for creation of the dispute, or possibly for its intensification. With this realization and acceptance of at least partial responsibility, they are in a better position to compromise.
Contrary to popular belief, litigation is not warfare. It is society’s “last ditch effort” to resolve stubborn, often complicated disputes. Where meetings, lunches, phone calls, or emails fail, litigation succeeds – by focusing attention and issues, by raising the stakes, by making the dispute expensive, time-consuming, unpredictable and aggravating. In the crucible of the judicial system, we find solutions. As a replacement for a duel at twenty paces, litigation represents a significant improvement. But litigation is not usually won or lost. As the layers of the litigation onion are peeled back, litigants realize that somewhere in the range of outcomes between winning and losing is a result they can live with. And it is critical that as these outcomes are evaluated, litigants and their counsel understand that compromise naturally evolves from acceptance of responsibility.
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