Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Friday, July 08, 2005

Fear and Greed.

It's been said that fear and greed are primary motivators. I would add love (and perhaps some others), but I won't quibble with the general aphorism.

Over the past week, I have represented clients in mediations. (A mediation is essentially a settlement conference before a neutral who doesn't decide the case, but seeks to get the parties to agree.)

Mediations are a petri dish of fear and greed.

For example, in each of these mediations and almost every other one I have attended, the mediator tries to make the defendant fear a worst case scenario. "This catastrophe could happen to you." Or, "You could be hit with a huge judgment, embarrassing publicity, among other things."

Conversely, if you represent plaintiffs, they try to appeal to their greed. If you settle, you will get money in hand, and probably more than you might expect to achieve at trial. Grab the cash now!

Whether you are representing a plaintiff or defendant, the conversation usually includes a slap at juries. These disparaging comments can range from, "You never know what they're going to do" (a truth), to "Do you really want a bunch of brain dead bozos deciding your case?" Not kind.

But, permeating it all, the mediators employ a mixture of fear and greed to get the participants to settle, I wonder if this technique is dishonest or honest. It's honest if litigation is truly totally unpredictable, random or chance. If it is as chaotic as mediators present it, is this the best way or even a good way to resolve disputes?