How To Overcome Post Mediation Settler’s Remorse?

Sometimes a party will consent to a settlement in mediation and later have regrets or second thoughts about their decision to mediate and/or the terms of the mediation settlement they agreed on. This sentiment is usually based on the belief that one could have achieved a better settlement or a better result had they moved forward with litigation.

This phenomenon usually known as settler’s remorse is not uncommon and is well-known by mediation practitioners. One can easily compare the settler’s remorse to another post-decision-making remorse that most of us has/ will experience in their life: the buyer’s remorse. The buyer’s remorse is usually defined as a feeling of regret experienced after making a purchase, typically one regarded as unnecessary or extravagant.

The above-described feeling of regret is the cornerstone of every post-decision remorse. Therefore, you will find below tips to help you better understand the settler’s remorse in mediation and hopefully allow you to overcome it.

1). Understanding the settler’s remorse mechanism

The settler’s remorse is simply an emotional response to a serious decision.

Psychologists who studied buyer’s remorse tell us that the more time, money, and thought is put into a decision the more likely a person is to experience remorse. Also, according to these psychologists, there are three major components to post-decision remorse: effort, responsibility, and commitment.

1-1). Effort is the resource invested to reach a decision. To put it simply, an agreement that requires a high amount of effort but does not bear high rewards is likely to lead to remorse.

1-2). Responsibility: The decision to settle is done out of your free will, therefore you will have to bear all its consequences. As a result, settlers who feel they have no choice but to commit to a settlement as they would most likely lose in a court of law, are less likely to have to deal with post-decision remorse because it was done of their own volition and they did not have another alternative to choose from.

On the other end of the spectrum, a settler’s remorse can even arise when a party who had the choice to settle or to go to court made an agreement that is very favorable to him/her. So, why does this happen? The answer is pretty simple: there may have been several alternatives and by making the decision they made those other options are no longer available. Also, by agreeing to settle, they will now be required to execute the agreement which may last for several years (e.g., child support).

1-3). Commitment refers to the continuing of an action. In other words, the purchase of an expensive item or the choice to mediate has a high commitment level because it will impact the future of the decision-maker for a long time. As a result, decisions with long-term commitment will be more likely to generate remorse.

2). Simple tips to avoid the settler’s remorse

2-1). Define your goals. It is easier to be pleased with an agreement if you feel that your goals have been met. By determining what your objectives are before the mediation, you will be in a better position to decide if the agreement you are entering into fulfills your expectations, at least the most important ones. If it does, you will be less likely to deal with post-decision remorse.

2-2). Say what you mean and mean what you say

If you agree to a settlement in mediation, you will be expected to carry out the terms of that agreement. Don’t say one thing and mean something else. Be clear in your communications with the other participants to the mediation and do not hesitate to ask questions to the mediator. This will avoid a situation where you agreed to do something but you will request modifications to the agreement when you will be asked to sign it. If this happens, the other party will view you as unreliable and untrustworthy and wanting to re-negotiate what has already been settled. Bear in mind that it is always extremely difficult to get what you meant if it does not mirror what you said.

2-3). Don’t listen to other person opinions

Well-meaning friends or family members will want to know the terms of your settlement and then offer their advice which oftentimes runs along these lines:

“You settled for what? You deserve more.”

“My friend got divorced and she got everything — why didn’t you?”

“You should have gone to court and told the judge and the judge would have given you more.”

It is stating the obvious that your friends and family want the best for you, which is expressed in the type of comments described above. They want you to win and to get more. That said, never lose sight that each case is different from other cases. Also, you might want to ask yourself if you could really have gotten more by going to court? Perhaps, but you would have had to pay for additional attorney fees and court costs and missed an opportunity to end in a timely manner an unpleasant situation in your life and move on.

Also, always remember that when you go to court the judge decides for the parties and may not give you what you want or expect. In other words, your mediated settlement might not include everything you were hoping for but it is better than getting nothing if the judge decides to do so.

2-4). Acknowledge that you made the best decision at the time

To make an informed decision during mediation, you should gather as much data as possible about your case before the mediation session. If you have an attorney, ask him/her for an honest evaluation of your case —the strong points and the weak points.

Then, spend time to reflect on what could be the various possible outcomes of your case and how could they affect you and others now and in the future. For instance, if you reach an agreement in mediation, you will not have any future attorney fees and that money can be put towards your children’s college expenses. By doing so, you will be in a position to make the best decision you could at that time of the mediation.

While settler’s remorse may be a common feeling, the decision is one YOU made — not the judge, not the attorney, or the other party. If you manage to be fully informed and understand the consequences of your decision you will most likely be in a position to reach the best settlement you could and avoid settler’s remorse.

At Mediation Path Silicon Valley, we are trained mediators available to discuss your mediation options with you. Call us if we can be of service to you and your family.