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Unrealistic Expectations

August 21, 2016

Unrealistic expectations can be a real stumbling block to the successful resolution of a disputed legal matter.

I have seen and written about this issue before.

In one post, I observed that sometimes people are not open to listening and learning about other side’s view of the case and the attendant risks. See, https://karpmediation.wordpress.com/2014/09/16/some-people-can-only-listen-to-themselves/

In that post, I quoted something attributed to Frank Zappa which goes like this:

“The mind is like a parachute; it only works if it is open.”

In another post, I suggested that the (over)confidence of counsel may undermine success in resolution. https://karpmediation.wordpress.com/2013/05/05/when-overconfidence-undermines-success-in-mediation/

There I suggested that there can be significant risks to success if the litigant’s attorney has assessed the case one way and the mediator disagrees even if tactfully.

Often, I refer to a very useful article I found once and bring to every mediation. It is called Cognitive Barriers To Success In Mediation: Irrational Attachments To Positions And Other Errors Of Perception That Impact Settlement Decisions, available at http://www.mediate.com//articles/PR_CognitiveBarriers.cfm

There, the authors point out the underlying psychological issue in this way:

Cognitive Dissonance. This bias refers to the fact that it is psychologically uncomfortable for most people to consider data that contradicts their viewpoint. Disputants and their attorneys tend to resolve conflicting information by justifying their own conduct, blaming others, and denying, downplaying, or ignoring the existence of conflicting data.

Yet sometimes even showing a litigant that there is a reason why she is stuck in her own position does not get her to adapt from her unrealistic expectations, make concessions, and end the dispute with a settlement.

Ultimately, it is not for me as mediator to disagree with that personal decision. Neither can I tell her I think she is making a mistake even if I have that belief.

As a mediator I must respect the litigant’s self-determination as to the outcome of the mediation, so long as I have given her the informed opportunity to consider the alternatives. See, https://karpmediation.wordpress.com/2016/01/24/defining-success-in-mediation-an-ethical-response/

That is my role.

I am not a judge and will not judge her.

***

David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

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