I read a blog on the Program on Negotiation Harvard Law School’s website entitled “Dealing with Difficult People and Negotiation: When Should You Give up the Fight” It notes that in every dispute lies the danger of irrational escalation. The parties simply to do not know when to “give up the ghost.” The blog then notes three reasons why such irrational escalation occurs;

1. “Fixating on Fairness”. A party wants a “fair” outcome (however the party defines “fairness”). What a plaintiff may view as “fair” may not jive with objective reality (or what a third party – a judge or jury- may view as “fair”) and so seeking the Holy Grail- plaintiff trudges on with the dispute.
2. “Focusing on sunk costs”. Often parties in a dispute think about the time and money that they have “sunk” into the controversy and because of it are hesitant to walk away; rather, they use those “sunk costs” as justification to spend even more money and time on the matter, hoping against hope that they will recoup it at the end. More times than not, all that they accomplished was to “throw good money after bad.”
3. “Let go psychologically.” As a controversy drags on, the parties tend to “demonize each other”, fixating on punishing the other party. As the blog notes, “The passion you invest in a dispute can become a sunk cost in its own right.” (Id.). Thus, it is paramount “… to recognize when the pursuit of a goal becomes a destructive obsession.” (Id.)

In my lemon law mediation, the plaintiff, though phrasing it in terms of “benefit vs. purpose” recognized these traps and avoided them. She avoided defining “fairness” unrealistically, did not fixate on the “sunk costs” and did not demonize the manufacturer. Rather, she took a very pragmatic view and knew it was time “to let go and move on” as to continue forward would neither provide further benefit nor further her purpose.

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