The Negotiator Magazine

Back to Index

1 2 next
download printable version (MS Word .doc)

If the theorists are right about gain frames and loss frames and loss aversion and the rest, these reframed questions will generate a lower plaintiff's number and a higher defendant's number than we get when we ask the question in the customary way.

The next step is to persuade the parties that the answers they give to these questions are the valuations they themselves put on their role in their lawsuit. If you say, Mr. Plaintiff that you would pay only x dollars to acquire your lawsuit if you didn't already have it, you are saying, are you not, that you think your lawsuit is worth x dollars.

If you say, Mr. Defendant, you would have to be paid y dollars in order to allow yourself to be sued in this case if you weren't already in it, aren't you saying you think this case is worth y dollars?

I haven't tried this thought experiment in a real settlement negotiation yet. But I have tried it with a group of graduate students and a group of law students. Classes were told they represented one of the parties, given a fact pattern and asked to provide a settlement value for the case. Then they were asked to provide another evaluation thinking of themselves as buyers and sellers in the lawsuit market instead of parties. The results in both tests were as predicted. The evaluations changed substantially in the anticipated direction. So the (very preliminary) indication is that this technique can help counteract framing effects and help settle lawsuits.

But I am a practitioner, not a theoretician. I don't know how to design a proper experiment to test the hypothesis and I certainly don't know how to evaluate data. If the idea looks appealing to anyone out there who does have those skills, I'd be delighted to hear from you.

Barry Goldman, MA, JD is a mediator and arbitrator of workplace disputes. He is a member of the National Academy of Arbitrators and serves as adjunct faculty at Wayne State University and Wayne State University Law School. He can be reached at bagman@ameritech.net.

1 2 next
Back to Index


March 2005