When Settling Can Seem Like a Bad Thing

{3:30 minutes to read} I tend not to use the word “settle” with clients in mediation. Although to settle is defined as “to reach agreement or decision...,” I prefer to use the phrase “to agree upon terms.” To me, to agree upon terms in mediation is quite different from settling on terms which have been hashed out by attorneys in an adversarial setting.

In an adversarial setting: 

• Each attorney’s role is to advocate for their client to achieve the best possible outcome for him/her by outmaneuvering the other. 
• To settle under those circumstances could result in more favorable terms for one party because he/she had the more competent, persistent and/or aggressive attorney. 
• Who “wins” the better settlement may not even be based on who had the better set of facts or on whose side the law fell, but on who had the more skilled attorney (see above). 
• Clients may later feel that at the end, their attorney pushed them to settle, and that they had no choice and may later be unwilling to abide by those terms.
• Clients may not feel positive about the ultimate separation agreement based on the settlement made because the whole process revolved around arguing for their position — and then feeling that they “caved in” if their position was not achieved.

In mediation:

• The clients are advocating for themselves in a process that puts the focus equally on the needs and interests of both parties rather than the positional bargaining in a traditional negotiation.
• Since the clients are the decision makers as to the terms agreed upon, the separation agreement has a greater likelihood of being adhered to and lasting.
• Mediation can be an empowering process where clients are encouraged to get the resources they need to make the best decisions they can, and to fully comprehend the matters being discussed.
• The clients have an understanding of what is important to the other so that the reasons why they have agreed to a certain term are clear.
• No one is pushing the clients to accept any term, and even if a client agrees to something that objectively may not be positive for him or her, the client has decisively and deliberately done so.

Sadly, sometimes people feel that after a hard fought battle, agreeing to settle without a trial means that they have lost and the other person has won. Settling could be perceived as negative, especially if you settle on terms that were different than what you anticipated in the beginning. And that negativity is reinforced if you feel that you have no choice but to accept the terms.

This passive or negative idea of settlement as a loss is the antithesis of mediation; a process into which you both enter with the goal of reaching an agreement that is acceptable to you both. That is why I’m very careful to say “agree upon terms,” as opposed to “settlement.”