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PGP Mediation Blog by Phyllis G. Pollack

Lawsuits are products. I know this sounds strange particularly to lawyers who after four years of college, three years of law school and then one or more bar examinations, do not want to consider themselves mere sales people (like the used car sales person?) but that is what we are: sales people. We are selling/ buying transactions or deals or lawsuits.

Since I deal in the world of lawsuits, I am going to focus on them. Think about it: a plaintiff has a product; her lawsuit. For a given price (i.e. a settlement or jury verdict), she will sell it to the defendant. Like all other products, the plaintiff seller places a higher value on it than does the defendant buyer. Sometimes, after some bargaining (aka haggling) they strike a deal in which the seller (plaintiff) takes less than she really wants but the buyer (defendant) also pays more than she originally intended. Sometimes they do not strike a deal and so leave it to a third party (judge or jury) to determine whether a sale should be made. Is the “product” worth the asking price?

As noted in a previous blog, I am reading Influence: Science and Practice by Robert B. Cialdini (4thed. 2001). While the book is geared towards everyday life, often using sales techniques as examples, if one follows my thinking above, it very much applies to lawsuits. They are products to be bought, sold and bargained for.

And as any good sales person will tell you, the principle of “liking” is very important.   Cialdini notes in the very first sentence of this chapter, “as a rule, we most prefer to say yes to the requests of people we know and like.” (Id. at 144.)  If we can get someone to like us and become our “friend”, then getting that person to agree to our request becomes that much easier. (Id. at 147-148.)

Cialdini points out the obvious:  people will tend to like other people based on the latter’s attractiveness, similarity and compliments. Cialdini mentions that we tend to have a positive response to people that are attractive. Thus, the halo effect comes into play: a positive characteristic of a person is so dominating that it skews our view of the person. As an example, studies have shown that attractive defendants receive more lenient criminal sentences than less attractive defendants. (Id. at 148-149.)

And then there is similarity: we like people that are similar to us. Be it in the way they dress, their backgrounds, their interests, their religion, politics, age, et cetera.  (Id. at 150-152.) Others have noted that we all have a tribal mentality: we like those that are “like us” and do not look so favorably on those that are “not like us.”

Compliments. As Cialdini notes, “we are phenomenal suckers for flattery.” (Id. at 152.) “[W]e tend, as a rule, to believe praise and to like those who provide it, often when it is probably untrue (citation omitted.)” (Id.)

I delve into this principle because as a mediator I see it play out in every mediation.  If opposing counsel “like” each other, and have a relationship as “professional friends”, they tend to be able to work out a compromise and settle the lawsuit. And… on the other hand, if opposing counsel are at each other’s throats, it is a lot more difficult to work things out. They will not believe much less trust what opposing counsel is stating via me as the mediator. Because they do distrust each other, the halo effect kicks in, negatively and whatever I say is discounted.

As a mediator, I long ago learned that to be a good one, I had to get the parties and counsel to trust me and have a relationship with me. In short, to “like” me.  The same is true for the sales persons selling and buying lawsuits; each has to be liked in order to be successful.

….  Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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