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It Is Very Hard for People to Give Ground.

October 2, 2014

A long-time litigator remarked to me the other day that he thinks it has become more difficult nowadays to settle cases.

As I was listening to him, I was thinking to myself that, now as before, it is difficult because it is very hard for people to give ground.

(For those unfamiliar with the idiom, to give ground is “to change your opinions or your demands in a discussion or argument so that it becomes easier to make an agreement.” See, http://idioms.thefreedictionary.com/give+ground .)

There is of course the emotional unwillingness to give ground.

By way of example, sometimes people are so invested in seeking justice, retribution, or vindication, that they just would not know what to do with themselves if they gave up the fight.

Or perhaps they feel as if they will lose face or be considered weak if they don’t stand up for themselves.

Or they “absolutely know” they are going to win and there’s no way they’d take less or give more given that “inevitable” outcome. (Never mind that sometimes they are just wrong.)

Or they are just too angry or insulted to see straight.

Then there is the financial unwillingness to give ground.

Ignoring the cost of not settling, people nowadays sometimes still bring the continuing financial consequences of the recent “Great Recession” with them to the table.

That is, with money so scarce for many people and with the economy continuing to lag, some still feel the pinch and are unwilling or unable to give up the chance for that pot of gold at the end of the trial.

Or they are unwilling or unable to agree to pay more to resolve a dispute with money they don’t feel they have.

With these kinds of obstacles to settlement, it is no wonder that the attorney with whom I spoke recently thinks it has become more difficult to settle cases nowadays.

As mediators, we can hope to help with the tools, techniques and experiences we bring to the table.

And with an injection of understanding, common sense and good counsel, perhaps the obstacles to settlement can be overcome or at least mitigated. [See by way of comparison, https://karpmediation.wordpress.com/2014/07/26/all-of-the-ingredients-for-resolution-were-present/ ]

Still, it is ultimately up to the disputants themselves to decide if they can give ground, and if so how much, to settle their cases.

And, yes, I acknowledge and appreciate that  it remains really hard for people to give ground when they are in the throes of litigation, whether and when they settle… or not.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. For further information, please consult his website at http://karpmediation.com .

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