As Chip and Dan Heath describe in their book Switch: How to Change Things When Change is Hard, we are rational beings with a “Rider” that logically analyzes our surroundings. Our Rider tries to direct our emotional side, “the Elephant.” Although we like to think our Rider is in control at all times, in truth, the Elephant is in charge much of the time. Data concerning the benefits of early case assessment and planned early dispute resolution may be appealing to the Rider, but if the Elephant is afraid of an unfamiliar process that might lead to bad outcomes, it will not move.

Perhaps the typical litigation mindset, beset by righteousness, indignation, and hot blood blind the Elephant because litigation itself – lawyers, subject matter experts, discovery, court orders, trials, appeals – is so familiar. For many people, litigation feels good, like a hammer of vindication that will force the other side to do what is “right.”

Oddly enough, however, the Elephant should fear litigation as the preferred method to resolve high-stakes disputes. Although clients may have a strong desire to know what will happen in complex cases, counsel can only offer educated guesses. Few people fully appreciate how many jurors do not want to serve on a panel. Some jurors may have limited attention spans or an inability or unwillingness to understand and apply the nuances of the law. Some may not want to compromise with others. None of the jurors lived through the history of the dispute and none will live with the fallout.

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