In his book, Influence- Science and Practice, Robert B. Cialdini (4th ed. Allyn and Bacon, Boston 2001) discusses six psychological principles that impact us every day.
One of them is Commitment and Consistency:
“ It is, quite, simply our desire to be and to appear consistent with what we have already done. Once we make a choice or take a stand, we will encounter personal and interpersonal pressures to behave consistently with that commitment. Those pressures will cause us to respond in ways that justify our earlier decision. We simply convince ourselves that we have made the right choice and, no doubt, feel better about our decision (Fazio, Blascovich & Driscoll, 1992.)” (Id at 53.) (italics original)
Because of this principle, a recent mediation did not settle. The matter involved an automobile that plaintiff claimed was a “lemon.” After several months and after plaintiff filed suit, Defendant offered to repurchase the vehicle but was not willing to pay a civil penalty for its alleged delay in waiting so long before offering to repurchase the vehicle. Thus, the lawsuit grinded along.
Then, the defendant filed a motion for summary judgement on the grounds that there was no reason to have a trial as it offered to repurchase the vehicle. The Court, noticing that a mediation was scheduled, issued a minute order indicating it would not issue its ruling until after the mediation concluded (probably hoping the matter would settle obviating the need for its ruling!)
Well, the matter did not settle. Why? The defendant was completely unwilling to offer one penny more than its original offer to repurchase. While I took pains to explain the principle of commitment and consistency to defendant, it would not budge. It believed its original offer was correct and would not allow plaintiff to “save face” by offering a bit more so that it became a “new and different” offer to which plaintiff could then say “yes.”
I believe part of the recalcitrance by defendant involved the attorneys’ fee issue. By statue, plaintiff’s counsel is entitled to its attorney fees if it prevails in the action. (California Civil Code §1794(d)) If defendant did offer a bit more, it was concerned that plaintiff’s counsel would then use that to argue that it prevailed in the litigation. (That is, the litigation was not frivolous or filed solely to obtain fees.)
I tried to explain that by virtue of its repurchase offer, defendant was already obliged to pay fees; it would simply be a question of how much. As Plaintiff was willing to file a fee motion, defendant would have a chance to object and try to persuade the court that the lawsuit lacked merit.
My discussion was ignored. By the end of the mediation, both parties were keen on seeing how the court would rule. Each wanted to “roll the dice.”
I am afraid that neither side will be happy with the outcome. The court sent a strong signal to the parties to settle, and they ignored it.
Based on its refusal to honor the principle of commitment and consistency, the defendant gave plaintiff no choice but to proceed forward with the litigation.
…. Just something to think about.
P.S. The Court awarded summary judgment on two of the three causes of action, leaving the lawsuit still active. Will it now cost defendant more to litigate the remaining cause of action than payment of a little extra at mediation to settle the whole suit? Or, is it the “principle” of the thing?
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