A blog post came to me after talking with an acquaintance last night. The acquaintance initially asked me a question but he really didn’t want to hear my answer. Instead, he wanted to tell me his news. Rather than listen to me he just wanted to talk. That was fine and I let him do so. He never really acknowledged the answer I had given to him to his question because he was too busy talking.
It seems to me the lack of truly listening is why a lot of business litigation occurs. And all that talk can be costly. Studies have shown that litigation transaction costs (excluding judgments and settlements) is on the rise every year to the tune of several billion dollars. And remarkably this isn’t because of increased hourly rates on the part of law firms as the data shows that there has been little change in legal hourly rates over time.
How can a business control these costs? I’ll go with listen more and talk less. Mediation (where both sides sit down with an impartial third party to hopefully settle differences) is a great example of a process that often works to reduce the costs and risks of going to trial. But all too often mediation doesn’t occur until a long ways into the litigation process. As a case nears trial the parties become more willing to negotiate because the risk of trial (and potentially losing) begins to loom. But rarely are cases settled by mediation prior to litigation.
So why not mediate earlier in the process? What I often hear is that the parties "are not ready" to mediate. The parties "don’t understand" the other party’s position. Or, they don’t understand or fail to acknowledge the "downside" to their own cases early in the litigation process. Is this really so? I don’t think so. If we spent more time listening, and I mean truly listening rather than just waiting to talk, parties could be ready to mediate and/or resolve their differences at an early stage and could save lots of money in the process.
Don’t get me wrong. There are times when you need to litigate. Particularly when the other side isn’t willing to listen. But try this in your next dispute. Pick up the phone and call the other side at the very outset of the process. (Don’t email). See if they are willing to meet and discuss the dispute. Go with the intention to listen and see if there is a middle ground. Perhaps consider mediation initially rather than waiting until the parties have spent an arm and a leg on pleadings, motions and discovery.
As Abraham Lincoln said,
"Discourage litigation. Persuade your neighbours to compromise when you can. Point out to them how the nominal winner is often a real loser – in fees, and expenses, and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this."
I could not have said it better myself, except by adding listening to the equation.