When parties and their lawyers are overly optimistic at mediation, it can lead to poor decision making and unnecessary risk taking. Learning to be mildly pessimistic can be beneficial.
One of my favourite non-fiction books is Martin Seligman’s Learned Optimism (New York: Vintage Books, 2006), a psychology classic. According to Dr. Seligman, optimism and pessimism are explanatory styles for when good or bad events happen to us. Pessimism is a “self-defeating way to think: making personal, permanent and pervasive explanations for bad events.” (p.77). This leads to learned helplessness. Optimists do the opposite when calamity strikes: It’s not their fault, it won’t last long and it won’t ruin everything. When good events occur, pessimists tend do see such things as the result of others, transient and not all encompassing. Optimists, on the other hand, take good news ‘personally’ (the good result was due to their efforts) and they view it as permanent and pervasive.
Seligman adds that “life inflicts the same setbacks and tragedies on the optimist as on the pessimist, but the optimist bounces back from defeat, and, with his life somewhat poorer, he picks up and starts again. The pessimist gives up and falls into depression. Because of his resilience, the optimist achieves more at work, at school, and on the playing field. The optimist has better physical health and may even live longer…Even when things go well for the pessimist, he is haunted by forebodings of catastrophe…The good news is that pessimists can learn the skills of optimism and permanently improve the quality of their lives” (p. 207).
Yet can pessimism ever be a good thing and is it ever worth learning? Yes. Seligman points to “mild pessimists” as an example. They are the prudent and measured professionals and not the “full-blown, high-octane pessimists whose explanatory style continually undermines their achievement and health” (p. 112). In the business world, “the successful corporation has its optimists, dreamers, salesmen, and creators. But the corporation..also needs its realists whose job is to counsel caution” (p.112).
Seligman offers a guideline for when to ‘optimally’ use optimism and pessimism. He suggests using optimism when in achievement situations, when concerned about how we will feel, if a situation is likely to be protracted and which could affect our health and, finally, if we want to lead. On the other hand, “if your goal is to plan for a risky and uncertain future, do not use optimism…The fundamental guideline for not deploying optimism is to ask what the cost of failure is in the particular situation. If the cost of failure is high, optimism is the wrong strategy” (p. 209).
Applying Seligman’s theories to civil litigation and, in particular, to mediation, during their private caucus sessions with mediators, parties or their lawyers often demonstrate boundless optimism about their case. When considering what lies ahead in a legal dispute if a settlement is not reached, they may assume that the other side is necessarily at fault and, therefore, must lose (non-personal) and the remaining litigation and the trial will not last long and will not intrude much on the party’s time, pocketbook or emotional life (non-pervasive) and will have a definitive ending (impermanent).
However, litigation is inherently risky, time consuming and expensive and it can have unexpected and devastating results. The loser may be ordered to pay a significant portion of the winner’s legal costs. A trial may not be the expected final act due to the prospect of appeals and, in many cases, additional proceedings to try to enforce a judgment. A winner might not ever be able to collect money or she or he can overspend on legal costs as compared to the value of the judgment. Both result in a pyrrhic victory. A trial, or other court or tribunal proceeding, is also public and can expose even a victor to unwanted public criticism and attention that can last indefinitely in the digital age.
In other words, the future is risky and uncertain, and the cost of failure is high. Therefore, pessimism is the right strategy — at least in its valuable, mild form — and it should be used during private discussions at mediation (when the other side is not present) or wherever and whenever the prospect of settlement is considered. As a mediator (and as settlement counsel assisting my own litigation clients) I have often prescribed a healthful dose of pessimism, where and when appropriate, to counterbalance dangerously overly-optimistic thinking that can so easily overtake people in conflict and the lawyers who help them.
I want to end on an optimistic note. Settling a case is a choice. Instead of feeling helpless, I find that people who choose how and when to put their legal conflicts behind them feel empowered. They experience a return of control over their lives. As Seligman would put it, they bounce back, pick up and start again. As time passes, most people do not miss the uncertainty, the cost, the stress and the feeling of remaining stuck. The lawsuit becomes a fading memory of a distant past. In a sense, they have learned to be optimistic.
Now that’s something to feel positive about.
Mitchell Rose is a mediator, settlement counsel and lawyer with Stancer, Gossin, Rose LLP in Toronto. He can be reached at
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