In a recent mediation, I asked Carol, the person seeking damages, what her interests were in pursuing a lawsuit. She said, “I want to make sure that ACME Company never treats another customer the way it treated me.” Carol did not have any significant injury or economic loss. Her case was a classic example of a dignitary injury, and she wanted justice.
In another mediation, Bob responded to the same question saying, “I don’t want another person to go through what I had to do through.” Bob’s damages were likewise small, but he had a deep need to change the defendant’s policies as a matter of justice.
These are very common expressions and provide some insight into the dynamics of conflict.
Most of us are aware of or have heard reference to Abraham Maslow’s hierarchy of needs. In the 1930s and 1940s, Maslow, a pioneering social psychologist, conducted research on human needs. He constructed a pyramid that from the top down listed the following needs: self actualization, love, self-esteem, safety, physical survival. As the bottom portions of the pyramid are satisfied, fully or partially, we seek fulfillment at the higher levels. Thus, we will spend energy assuring our physical survival by finding reliable sources of food and water, then seek safety, then seek self-esteem, etc.
Expressions in conflict relating to forcing change on the other party are expressions of the lower hierarchy of needs. For example, Carol’s statement reflects her perceived need for safety and self-esteem. Her need for safety comes from her need for predictability and certainty in how ACME Company will treat people like her in the future. By framing the conflict in terms of a behavioral change by ACME, Carol is asserting control over her environment. Carol’s need for self-esteem is expressed as her need to be respected, to be treated fairly, and to not be harmed by ACME Company. These needs are not frivolous, but seem to go to the core of humanness.
The perceived denial of fundamental needs, especially physical needs, safety, and self-esteem is a common cause of conflict. Denial of these needs also seem to underlie many lawsuits. People “seek justice” to right a perceived wrong and that perceived wrong can frequently be traced back to a perceived denial of need. Because of our highly individualized, impersonal, technocratic culture, perceived injustices arise out of indignities, disrespect, rudeness and lack of care. Hence, lawsuits seeking justice for injuries to dignity are common as well. Usually, these lawsuits are considered frivolous because the plaintiff has not been economically injured.
Unfortunately, the law confronts people like Carol with hard truths. The first is that the law does not and cannot compel future acts except in a very narrow set of circumstances, none of which apply here. Carol cannot get a judge or jury to compel ACME Company to treat her and all future customers with respect and politeness. A court cannot compel apology, remorse, or other moral acknowledgement of accountability. Even if Carol wins at trial, ACME Company will continue to deny responsibility and will feel victimized by what it perceives as an unjust decision. Thus, Carol’s need for vindication and imposed change will be unsatisfied and ignored.
The second truth is that the law translates all injuries into compensation. Entitlement to compensation usually requires proof of significant, not trivial, economic loss. The law will consider compensating for a serious physical injury that requiring medical attention and causing lost wages, but will not compensate for a bruise or a scratch or hurt feelings that caused no loss at all. Likewise, Carol’s desire to not have other customers treated rudely cannot be easily translated into dollars. Her quest for justice is simply not appropriate in the courts. Yet because no other formal institution exists for the redress of injustice, Carol can likely find a lawyer somewhere willing to take on her cause.
The question for businesses facing these complaints and lawsuits is perplexing. Taking a hard-nosed position and acting tough is attractive. First, maybe having a reputation for toughness will deter others from “holding us up.” But taking on the tough stance is expensive. If the complaint is forwarded to the insurance company, premiums might go up. When the lawyers get involved, legal fees of necessity become a serious financial drain on the business. What to do?
Business groups often advocate restricting access to the legal system by regulating attorney’s fees, limiting damages, and so forth. The problem with these “reforms” is that they prevent legitimate claims from being filed and tried. Without the ability to obtain proper legal redress for serious injuries, our social and economic system could be deeply wounded.
The California residential real estate industry has developed another model that seems to be working. In its standard purchase contracts, all parties to the purchase and sale of a home agree to mediate their conflicts before filing a lawsuit. If a party refuses to mediate, it gives up its right to claim attorney’s fees. Early mediation doesn’t solve all conflicts, but in my experience, a majority seem to resolve. Perhaps the answer to “frivolous” or “noneconomic” claims or lawsuits against businesses is to invite very early mediation. Mediation can help resolve injustices and help satisfy Maslow’s unmet needs in ways that the courts cannot. Finally, business owners and managers might learn from the mediation about company policies and procedures that are driving away business.
Because mediation is confidential in California, the discussions will not be made public and resolutions can be quick, efficient, and cost-effective. Mediation could be a good tool for dealing with the denial of not-so-frivolous needs before they turn into expensive frivolous lawsuits.