You’re in settlement negotiations.  Lots of back-and-forth.  Finally you get the right offer.  It’s fair. It’s reasonable.  Maybe not what you’d hoped.  But it makes sense.  Your lawyer says, take it.  You know you should say, Yes.  It makes sense to say, Yes.

But you can’t do it.

So your lawyer patiently (or not so patiently) re-explains why the proposal’s reasonable.  But you already get all that.  And re-explains why settling makes total sense.  You get that, too.  And how crazy it’d be to say, No, in these circumstances.  Which you know.  And how settlement just isn’t going to get any better than this.  Which you totally understand, as well.

Still, you can’t say, Yes.

Why?  What’s the real problem here?  What’s really stopping you from being able to say, Yes, to a proposal that you know makes complete sense?  What’s your lawyer missing?

There are several possibilities, of course.

Let’s focus on a very subtle one, one that many parties and many attorneys don’t truly appreciate, but one that, if left unaddressed, can become a powerful and sometimes insurmountable barrier to settlement. The insight comes from psychotherapist Irvin Yalom in his masterwork, Love’s Executioner – it’s what I call the “Yalom Dilemma” – where he says:

Decision making invariably involves renunciation: for every ‘yes’ there must be a ‘no,’ each decision eliminating or killing other options.”

How’s that apply to settlement negotiations?

The Yalom Dilemma reminds us that for a litigant to say “Yes” to any settlement offer, it invariably means they’re also simultaneously saying, “No” not only to every other possible litigation outcome in the case, but, even more important, to everything you might feel those other litigation possibilities emotionally signify or imply about you and the kind of person you are.

For example, if you’re the owner, executive or representative of an employment case Defendant, saying “Yes” to settlement can feel like you’re also, simultaneously saying “No” to things like:

  1. Am I a person of principle?

    Who doesn’t want to be a person of principle, and known as a person of principle?  Willing to fight for what’s right, regardless of the cost, regardless of the risk. Someone who doesn’t just talk-the-talk, they walk-the-walk.  That’s who we want to be.  It’s how we want to be thought of.  But settling, even for a reasonable sum, even when it makes perfect sense under the circumstances, can feel like you’re telling the world, “No, I’m not a person of principle.”  My principles all have a price.  And I’m just another sell-out, compromising what I know’s right.

  2. Am I courageous?

    We all want to see ourselves as strong, courageous, unafraid.  Some who won’t be pushed around, not by a lawsuit, not by a former employee, certainly not by your own lawyer.  Someone who’s not afraid to let a jury stand in judgment of them, come what may.  But settling, again, even for a reasonable amount, can feel like you’re simultaneously admitting, “No,” I’m not strong, I’m not courageous.  I’m afraid of being hurt, afraid of being judged, more afraid of losing than of standing up and fighting for what I know is right.

Nor are employment case plaintiffs immune from similar feelings, that saying “Yes” to a pre-trial settlement also means saying “No” to things like:

  1. The possibility, however remote, they might hit the jackpot, and win enough money to finally and forever escape all the frustrations and disappointments of their current life.
  2. Being someone whose integrity can’t be bought.

We could think of dozens of other examples for both sides of the equation, but the point is this:  When you’re feeling reluctant to say, “Yes” to a settlement that otherwise seems so reasonable, maybe the problem isn’t the settlement itself, or your understanding of its terms, or your appreciation of the context and the implications if you don’t accept it. Maybe the problems is you’re just not ready, or you don’t quite know how, to say, “No” to all the ways that “Yes” decision otherwise makes you feel.

Which means – and this is the key insight, for you and for your attorney – if you’re in that situation, you don’t need your attorney to explain and re-explain and re-explain again the merits of the proposal on the table.  You might need just the opposite.  What you might need is an attorney (like us!) who understands the Yalom Dilemma and who can help you turn 180 degrees away from the proposal itself and, instead, help you work through all those nagging “No” issues.  Help you until you feel comfortable enough with who you are and the fact that settling doesn’t, in fact, mean you’re afraid, or unprincipled or that your integrity’s for sale, such that you can then re-address the settlement proposal on its merits and resolve the case.

Settling is difficult work.

But it helps if your lawyer appreciates the psychology of Yalom’s Dilemma, enough to point you in a helpful direction when a reasonable settlement is on the table, and you’re struggling to find a way to say, “Yes” and “No” at the same time.

David B. Simpson