People file lawsuits because they feel they’ve lost something. An employee may feel they’ve been illegally fired and they lost an income, future opportunities and the companionship of co-workers. A former partner or shareholder may feel he lost his business because other conspired to push him out of the company. The family of someone killed due to the negligence of others may be grieving the loss of a loved one.
This loss and what’s seen as wrongful acts can result in a feeling of resentment which can be powerfully strong. It may be what’s keeping the person together and nominally functioning, fueling a desire for retribution or revenge.
Dr. Elizabeth Kubler-Ross in her book “On Death and Dying” formulated five stages of grieving:
Denial: People are unable or unwilling to accept the loss. It feels like a bad dream and they’re waiting to wake up so things will be back to normal.
Anger: Focused at others, or themselves, for the loss and the unfairness of it.
Bargaining: People beg their “higher power” that some change will take place in exchange for the former status quo.
Depression: The inevitability and reality of the loss is confronted, as well as their own helplessness to change it.
Acceptance: The emotions of grief are processed. The person is able to accept the loss has occurred and cannot be undone. Planning for the future and re-engaging in life can start up again.
In many instances of loss, it’s not just the job, ownership or income that are taken away. It’s also the comradery, personal relationships and trust.
Mourning is so powerful that it isn’t limited to real life situations. It can also be felt over the loss of fictional television programs, according to a study released last year and discussed in a Science Daily article. It found that viewers felt the loss of the community of fellow viewers (either real or virtual, those connected through social media) and that feeling of loss varied depending on if the show suffered a “good death” (plot lines were resolved, characters moved on with their lives).
Trying to bring resolution to issues in which one or both parties are still going through the grieving process may be a waste of time. They may not be in a frame of mind to fully accept the loss and be able to decide to finally put the issue behind them. This is especially true of the stereotypical vengeful plaintiff seeking not a settlement but the proverbial pound of flesh from the opposing party.
When possible, the best way to deal with a mourning party during negotiation and mediation is to wait until he or she has accepted the loss, is able to put things in perspective and is in a place intellectually and emotionally to make decisions to resolve legal claims with the other party. However, often, we don’t have the luxury to wait for such acceptance. In those cases, you have to help the party get over their grieving. There is no magic pill to help with this problem. However, the key is in addressing each of the stages of grieving. You have to be able to help the party get through each of the stages.
The following are a few ways to help in each stage:
Denial: Allowing Venting, Having Patience, and Accepting a version of what they have to say. Showing acceptance of their denial and version.
Anger: Not taking it personally. Letting them air their feelings. Don’t stop their demonstration of anger, but redirect to a healthy path.
Bargaining: Allow them to try to bargain. Try to demonstrate why their solution won’t work without rejecting the idea.
Depression: Be understanding of their position. Divert attention away from depression and focus on future.
Acceptance: Present the final deal points during this phase only.