Not-So-Frivolous
Needs Cause Frivolous Lawsuits Unless
Mediated
Douglas E. Noll, Esq.
May 2005
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.
Douglas E. Noll, Esq. is a lawyer specializing in peacemaking and mediation of difficult and intractable conflicts throughout California. His firm, Noll Associates is based in Central California. He may be reached through his website and email at doug@nollassociates.com
© 2005, Douglas E. Noll