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Some Food for Thought Over Labor Day Weekend

Dispute Settlement Counsel by Michael Zeytoonian.

Can you respond rationally to your dispute instead of emotionally?

Fact: Over 95% of the cases filed in courts end up settling and never go to trial. If you know there is an overwhelming likelihood that your case will settle through negotiations or mediation – doesn’t it make sense to use a process designed to reach a settlement in a time and cost effective way? Rather than litigate, this other approach would save time, money and aggravation. It would also prevent the largely unnecessary draining of the resources, energies and emotions of all parties involved.

How many other human endeavors can you think of in which people are willing to commit their time, money and resources to a process in which the event they are preparing for will only happen 3% of the time?

So before you file that lawsuit or hire a litigation firm to defend against one, isn’t it worth checking out what your other options are? Isn’t it worth getting some legal advice about these, get an assessment of your situation and get educated on other approaches that will likely be far more effective at getting your goals and interest met?

What happens when people react with their emotions instead of rationally?  

You get something like the NFL’s “Deflategate” debacle. A rational approach to this matter of an allegedly broken rule would have been to assess the $25,000 fine in the NFL rulebook. The assessment of a fine like this typically happens right after the infraction is discovered. It is generally not challenged if it’s not completely arbitrary or off the mark (like a fine of $1million, the loss of two draft picks and a four game suspension). The wrongdoer usually pays it within weeks of the assessment of the penalty.

But when emotions, egos and other hidden agendas take over, you get the mess that the NFL finds itself in today. The league and its commissioner are the laughing stock of any rational, normal person. The only beneficiaries are lawyers who have made millions on this and comedians who have great fodder for one liners. The league, commissioner Roger Goodell, Tom Brady, Robert Kraft, the Patriots, the other NFL teams – no one will get anything positive from this farce. The general public and sports fan are tired of tolerating this nonsense after six months. Talk about lose-lose! I think about the good that could have come from the millions of dollars and man-hours that have been casually tossed around if that money had gone to some good causes or people that truly need help.

In lawsuit terms, you’d get something like the Demoulas family supermarket (aka Market Basket) dispute that went on and on for a decade or more. It also resulted in the parties spending millions in legal fees, and spending years draining their energies, emotions and resources and destroying any chance for maintaining healthy relationships in the family or the business.

On a smaller scale, I once had a client that spent over $5,000 in legal fees over a $5.00 dispute. He was so driven by “the principle of the thing” and the ego that drove him to “not back down” that he was willing to spend that money, take up months of his time and run the risk of having a criminal conviction for disturbing the peace against him.

Anyone who has been through litigation will tell you they never want to go through it again, even if they “won”.   Even hardened businessmen that began the litigation process ready to fight to the end and wear the other side down usually reach a point, about a year or two later, where they are asking themselves and their lawyers why they are doing this. Soon after, they direct their lawyers to settle this case now as they have had enough.

Can people make the shift from the emotional, ego response to a more rational, well thought out approach? Dan and Chip Heath discussed this phenomenon in their excellent book, Switch: How to Change Things When Change is Hard. They concluded that decision making is often a contest between our rational side (“the Rider”) and emotional side (“the Elephant”). Their premise is that the Elephant makes decisions, not the Rider. Maybe that’s why people choose to litigate. If we can’t persuade people to approach disputes rationally, we may have to figure out how to appeal to the Elephants within people. But until we do, I’m going to keep working on the Riders out there, hoping they can rein in their Elephants.


Michael A. Zeytoonian

Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education… MORE >

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