The Courage to Mediate: Why Is It Easier to Fight Than to Settle?

“You’ll be hearing from my solicitor.”

It is a familiar expression in British life. It conveys determination, seriousness and the threat of legal proceedings.

But when did you last hear someone announce:

“You’ll be hearing from my mediator”?

Or:

“See you in mediation.”

Why do those expressions sound so unfamiliar?

Why do we associate litigation with strength, but sometimes regard an invitation to mediate as an admission of weakness?

Perhaps the real courage lies not in continuing a fight, but in being prepared to resolve it.

The Culture of Standing Your Ground

Our legal system is adversarial. We speak of winning cases, defeating claims and fighting for our rights.

There is nothing inherently wrong with defending a legal principle. Access to justice and the ability to enforce legal rights are essential features of the rule of law.

But litigation can encourage parties to view disputes as contests in which compromise represents defeat.

A commercial disagreement can become a battle over reputation. A boundary dispute can become a struggle for personal dignity. An inheritance disagreement can become a contest over fairness and recognition.

The original issue may become almost secondary.

Why does this happen?

Psychological research provides some important answers.

Naming, Blaming and Claiming: How Grievances Develop

In their influential research, William Felstiner, Richard Abel and Austin Sarat described the process through which experiences become disputes.

Their article, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming (1980–81), identified three stages.

First, someone recognises that they have suffered harm.

Second, they attribute responsibility to another person.

Third, they demand a remedy.

The significance of this analysis is that a dispute is not a fixed object. It develops as the parties interpret events and respond to one another.

A fence erected in the wrong place may initially be an inconvenience. (See our work on property and land disputes.)

Once the homeowner concludes that their neighbour has deliberately taken their land, the fence becomes a symbol of injustice.

The dispute is no longer simply about property.

It is about respect, fairness and refusing to be taken advantage of.

Why People Reject Sensible Settlements

In 1994, Russell Korobkin and Chris Guthrie published Psychological Barriers to Litigation Settlement: An Experimental Approach in the Michigan Law Review.

Their experiments examined how framing, perceptions of fairness and reactive devaluation affect settlement decisions.

The research challenged the assumption that litigants always make decisions by calculating the expected financial return.

People may reject economically attractive settlements because the proposals feel unfair or because they distrust the person making them.

An offer of £20,000 may be perfectly reasonable when assessed against litigation risks.

But if a claimant believes they are entitled to £30,000, they may experience the offer as a loss of £10,000 rather than a gain of £20,000.

The way a proposal is perceived can matter as much as its financial value.

Why Both Sides Think They Are Right

Research by George Loewenstein, Samuel Issacharoff, Colin Camerer and Linda Babcock explored self-serving assessments of fairness in pretrial bargaining.

Their 1993 study demonstrated the importance of how parties assess fairness from their own positions.

Two people can consider the same dispute and sincerely reach different conclusions about what constitutes a fair result.

This is not necessarily dishonesty.

It reflects the influence of perspective and self-interest on judgment.

A claimant may see an offer as insulting. The defendant may regard exactly the same offer as generous.

Each considers the other unreasonable.

And the longer the dispute continues, the more entrenched those perceptions may become.

When Litigation Becomes a Matter of Identity

Consider the recent reported boundary dispute in *Douglas v Channon*.

The litigation concerned the position of a former hedge between adjoining properties. One issue on appeal involved a discrepancy in the plotted boundary measured in millimetres.

The homeowner who lost the principal boundary issue was ordered to pay £108,402 on account of her neighbour’s legal costs, with her ultimate liability subject to assessment.

Why can disputes involving tiny areas of land generate such extraordinary costs?

We cannot know the private motivations of the parties in that case.

But disputes about homes, businesses and reputations can acquire symbolic importance far exceeding their monetary value.

A narrow strip of land may represent ownership, control, independence or the belief that nobody should be allowed to take advantage of us.

Once the dispute becomes connected to personal identity, compromise can feel like surrender.

The question is no longer simply whether continuing litigation is worthwhile.

It becomes whether the individual can accept an outcome which does not confirm that they were right.

The Sunk Cost Trap

Another obstacle is the sunk cost effect.

A party who has already spent £40,000 on legal fees may feel unable to settle because doing so would appear to waste that expenditure.

They spend another £20,000 seeking vindication.

The further they proceed, the more difficult withdrawal becomes.

Time, money, energy and personal reputation have all been invested in the dispute.

Yet expenditure already incurred cannot ordinarily be recovered simply by continuing to litigate.

The sensible question is what further expenditure is likely to achieve.

Unfortunately, the psychological need to justify previous decisions can make that question difficult to confront.

The Importance of Being Heard

Tom Tyler’s research into procedural justice helps explain why the process of resolving a dispute can be as important as the outcome.

People value being listened to, treated respectfully and given an opportunity to explain their position.

Sometimes a litigant wants an apology more than compensation.

Jennifer Robbennolt’s experimental research on apologies and legal settlement examined how an apology can influence the way a claimant responds to a settlement offer.

Sometimes a business owner wants a retraction.

Sometimes a neighbour wants acknowledgement that their concerns were legitimate.

A court can determine legal rights, but it may not provide the emotional recognition a party seeks.

Mediation can offer a different process.

It provides an opportunity to explore not only legal positions but also the interests, concerns and needs underlying them.

The Role of Lawyers

In their 1997 article, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, Chris Guthrie and Russell Korobkin considered how lawyers can influence settlement decisions.

Their analysis recognised an important distinction between cognitive errors and genuine client preferences.

A client who overestimates their prospects of success may need realistic advice.

But a client who places genuine value on vindication may simply have objectives which are not primarily financial.

A lawyer or mediator must understand that distinction.

The purpose of mediation is not to persuade everyone that their principles are unimportant.

It is to explore whether those principles can be respected without incurring the further financial and personal consequences of litigation.

The Courage to Make the First Move

There is a particular difficulty in proposing mediation.

Someone must make the first move.

And the party who suggests it may fear appearing weak.

A claimant may worry that the defendant will interpret the invitation as evidence of a weak case.

A defendant may worry that the claimant will regard the proposal as an admission of liability.

Both parties may privately want settlement, yet neither wishes to suggest it.

This is precisely the culture that needs to change.

An invitation to mediate should not mean:

“I am afraid of losing.”

It should mean:

“I am sufficiently confident to explore whether there is a better way of resolving this.”

The Courts Are Changing Their Approach

The Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 confirmed that courts may, in appropriate circumstances, require parties to engage in non-court dispute resolution.

The expansion of mandatory mediation appointments for eligible small money claims also reflects a shift towards treating mediation as an ordinary part of civil dispute resolution.

Parties are not compelled to settle.

But the process encourages them to consider whether a judicial determination is really necessary.

As mediation becomes more familiar, the perception that proposing it is a sign of weakness may gradually diminish.

The Courage to Resolve

Litigation has an important place in society.

Some disputes require authoritative judgments, urgent protection or the enforcement of legal rights.

But not every grievance needs to become a legal battle.

Sometimes the greatest difficulty is not understanding the legal merits.

It is relinquishing the emotional need to win.

Mediation requires parties to confront uncertainty, listen to another perspective and consider an outcome which may be imperfect.

That can require considerable courage.

Perhaps we should begin to admire the person who proposes mediation rather than the person who threatens litigation.

“Sometimes the strongest person in a dispute is the one who has the courage to bring it to an end.”

About ProMediate

ProMediate provides independent civil and commercial mediation services throughout England and Wales, including contractual disputes, property and boundary disputes, professional disagreements and other civil claims.

To discuss arranging a mediation, request a mediation or see our published fees.

Academic References

• Felstiner, W.L.F., Abel, R.L. and Sarat, A. (1981). “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming.” Law & Society Review, 15(3–4), 631–654. View article (DOI)
• Korobkin, R. and Guthrie, C. (1994). “Psychological Barriers to Litigation Settlement: An Experimental Approach.” Michigan Law Review, 93(1), 107 onwards. View article (University of Michigan Law School)
• Loewenstein, G., Issacharoff, S., Camerer, C. and Babcock, L. (1993). “Self-Serving Assessments of Fairness and Pretrial Bargaining.” Journal of Legal Studies, 22(1), 135–159. View article (DOI)
• Tyler, T.R. (1990). Why People Obey the Law. Yale University Press. View abstract (Office of Justice Programs)
• Robbennolt, J.K. (2003). “Apologies and Legal Settlement: An Empirical Examination.” Michigan Law Review, 102(3), 460–516. View article (University of Michigan Law School)
• Guthrie, C. and Korobkin, R. (1997). “Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer.” Texas Law Review, 76, 77 onwards. View article (Vanderbilt Law School)