Why do people sue each other? The answer may seem simple to any lawyer: because they feel aggrieved by some action or inaction by the other party. This is true, of course, but it doesn’t get you very far. It is not a basis for negotiation or settlement.
However, as a psychologist and a behavioural geneticist, I know that there’s a great deal more to the issue. Let’s start with a really, really basic idea, which has been confirmed by every study into human behaviour over the last 20-or-so years: all human beings (even psychopaths) need to be part of a nexus of supportive relationships.
In fact, we fear exclusion more than anything else. We will die to make ourselves more valued members of our selected ‘tribes’ – to have a higher status in their eyes.
In almost every piece of litigation, one of the parties (or maybe both) feels at some deep level that they have been excluded, or are going to be. ‘Exclusion’ can mean many things to many people, but usually it means being shut out from a relationship or network of relationships, which we feel is really or potentially supportive of us.
Now another basic fact: human beings – even solicitors, psychologists and scientists – make their decisions on the basis of emotion and a whole range of other things such as our context, our childhood experiences, our habitual responses, our health, our genetics, our relationship drivers, our mood, our assumptions and beliefs, our memories, and even the state of our gut microbiota.
As a topical example, we vote in the way our genetics program us to vote. In the words of W.S. Gilbert: “Every child who’s born alive is either a little liberal or else a little conservative”.
Missing from this list, you will no doubt have noted, are facts and reason. We do not make decisions on the basis of the facts of the matter or any reasoning – we use these to justify the decisions that other parts of the human system have already made.
So the decision to sue may have nothing to do with the facts – they may just be the rational justification for the emotional need for revenge or the desire to hurt the other party.
‘But wait,’ as they say in the late-night cable TV ads. ‘There’s more!’
Humans are slaves to four core relational/emotional drivers, which I, as a consultant who needs acronyms, call the CATS drivers. We have needs for Certainty, Autonomy, Trust and Status. If most of our actions are governed by our need for supportive relationships, it’s the CATS that show us whether the relationship is strong and on-going.
- We need the Certainty that what we class as our support network values the relationship as much as we do. If we lose this certainty, we may well start throwing writs around.
- We need Autonomy so that have a sense of control over our own destiny within the context of our relationships. Often a suit is a demonstration of autonomy.
- We need to feel that we can Trust the people that we have relationships with.
- And we need to feel that we have Status in the eyes of the other people we relate with. Status is closely related to safety. A suit may well be a demonstration of status.
In every litigation there will be CATS elements behind the impulse to sue – or the action or inaction that led to the matter in the first place. Perhaps, then, the job of a good solicitor or litigator is to talk to the parties and find out the underlying issues – the failed relationship, the loss of a sense of support, the lack of autonomy, the loss of status (for example, is he or she suing to look good to a boss or a board?), the developing lack of trust, or a sense that they need the certainty that a successful lawsuit might bring.
Once you understand these issues, you can begin to negotiate on the basis of the real, important issues that drive human behaviour. You can examine each party’s CATS needs to find out ways that these might be met outside of going to court. The greater the detail in which you can get the parties to express their needs, the better. You can negotiate about specific needs but not about generalities, which are always laden with deep-seated, unspoken or even unclarified or unidentified emotions.
Even a trivial request such as ‘I need this ASAP’ has no specificity (no hint of exactly when the person wants it), so it’s not about what they want done, but the anxiety they probably feel about it. I had fun the other day going through a leasing agreement and picking out the clauses that hinted at underlying emotional, rather than factual, issues – though they looked, on the surface, to be concrete and related solely to the property concerned.
But even a specific need will have an emotional undercurrent or a CATS issue behind it.
Discovery, then, should include discussions to discover the underlying CATS, relational and emotional issues that have led to the problem in the first place.