Get Curious, Not Furious

A feature article in the 2024 May/June edition of CLM Magazine touted the attention-grabbing title, “Shattering The Doom Loop: Quieting our Internal Chatter to Break the Cycle of Ruin.” It sounded ominous and raised the questions, “What the heck is a doom loop?” and, “What does it have to do with claims?” However, many litigators and claims professionals found themselves nodding in recognition. Discussing mediator insights can provide additional solutions.  

As described by the article’s author, Matthew Cianflone, a doom loop is when “one negative event triggers another, which triggers a new bad event or worsens the first.” In the context of litigation, this vicious cycle often leads to prolonged disputes, unnecessary conflict, and spiraling costs. Surveys consistently show that both claims and counsel feel a majority of litigated claims settle much later than they should and the extended litigation does not necessarily lead to better outcomes.

In his article, Cianflone suggested several productive strategies to help professionals escape the doom loop, such as reducing negative self-talk, improving communication, and adopting a more objective view of one’s cases. There are also solutions tailored to claims professionals and litigators.

The Nature and Emotional Dimension of the Doom Loop

Litigation is inherently adversarial. Our legal system is built around the idea of opposing parties fighting to achieve victory: a battle to be won with victory viewed in zero-sum terms. This mindset can lead to conflict escalation. Often, the emphasis is how to outmaneuver and out-argue the opposing side. This mindset leads to the doom loop. When both sides are focused solely on “winning,” they often miss opportunities to effectively resolve disputes.

Emotions play a significant role in perpetuating the doom loop. When litigators feel personally or professionally attacked, they may respond defensively, which can escalate the conflict. The longer a case drags on, the more emotionally invested each side becomes. This emotional investment can cloud judgment and fuel the doom loop.

Daniel Kahneman, Nobel Prize-winning psychologist and author of “Thinking, Fast and Slow,” has written extensively about how emotions can lead to flawed decision-making. Far too often emotional reactions override rational thinking. In the context of litigation, when litigators and claims professionals feel threatened or angry, they are more likely to make decisions based on emotion rather than logic, which can prolong the litigation unnecessarily.

The Nature of Litigation: A Shift in Perspective

Given that only <5% of civil cases go to trial, the majority of litigation is about negotiation. In most cases there isn’t an adjudicated winner or loser. Instead, both sides eventually come to an agreement of their own making.

Thus, it’s important to shift our perspective on litigation. Rather than viewing it as a battle, we should view it as the negotiation it is—a process in which both sides are working towards a mutually acceptable outcome. This shift can go a long way toward breaking the doom loop. By reframing litigation as a problem-solving process, we can focus on finding solutions that work for both sides and avoid unnecessary escalation. This isn’t to suggest a ‘one-size-fits-all’ solution, but shifting to a mindset of ‘problem-solving negotiator’ will make it easier to determine what strategy to employ in each case.

“Get Curious, Not Furious”: A Different Approach to Claims

Through my experience as a litigator turned mediator, I have developed a philosophy I call “Get Curious, Not Furious.” This approach emphasizes understanding the other side, staying calm and strategic, and working collaboratively whenever possible. Below are some key principles of this philosophy and how they can help litigators and claims professionals avoid the doom loop.

1. Focus on the end from the beginning

Know your goal. Understanding how your case is likely to end is essential to shaping a successful strategy. There are only a few ways a lawsuit can end: plaintiff drops the case, the court dismisses it, responsibility is transferred, a settlement is reached, or the case goes to trial. As mentioned, the vast majority of cases settle, but understanding the likelihood of each outcome helps set your goals early.

From the moment a case is assigned, you should focus on what it will take to resolve it, whether through settlement or trial, and communicate this with your client and the adjuster. Clarity about the endgame allows for a more streamlined, efficient process, reducing the chances of getting trapped in the doom loop.

2. Work “with,” not “against”

Despite the adversarial nature of litigation, the way litigators treat each other greatly influences the course of a case. Modern neuroscience teaches that humans experience a new emotion every 125 milliseconds, followed by an impulse to act on that emotion. These moments of emotional response are countless opportunities to either improve or worsen a relationship.

Words matter. Tone matters. Compare, “That’s BS!” with “I hear what you’re saying, but I’m not sure I agree.” These small shifts in communication can help establish a rapport-based working relationship. There is significant value in building a positive relationship with opposing counsel. “Collaboration” may be a dirty word these days, but don’t discount the strategic advantages of the principle. Developing goodwill helps not only in a current case but also makes future interactions more likely to be productive.

Kahneman calls this “adversarial collaboration,” where the sides work together (as much as possible) despite conflicting views. He also notes, “anger generates heat, but no light.” While anger may fuel our desire to fight, it rarely leads to constructive solutions.

Yes, ‘it takes two to tango,’ and one can’t necessarily defeat the doom loop on their own. But one can control their own actions. And in most cases (although, admittedly, not always) when one side makes the effort, the process benefits.

3. Neutralize difficult opponents

Not every opposing counsel will be open to your gracious gestures. Some may be difficult, combative, or downright unpleasant. In these cases, it’s important to resist the urge to retaliate. Responding in kind only escalates the conflict and pushes both sides deeper into the doom loop. 

Focus on neutralizing the difficult opponent by staying calm and professional. Take a moment to pause before responding to inflammatory statements or aggressive tactics. By maintaining your composure, you prevent the situation from escalating further and retain control of the narrative. This doesn’t mean backing down or conceding important points; it means approaching the situation with a level head and a focus on the bigger picture.

Taking the high road can be challenging, especially with an obstreperous opponent, but it always pays off. Often, a difficult attitude stems from personal reasons unrelated to the case itself. It could be a litigation tactic, or the person may be dealing with issues outside of work. Giving the benefit of the doubt (until you have a reason not to) allows you to stay focused on the problem, not the person.

When you retaliate and escalate the conflict you do yourself and your client a disservice. Neutralizing a difficult opponent can be as simple as getting the case into settlement negotiations or mediation early, shifting the focus from the fight to a solution that terminates the toxic relationship.

4. Use the power of questions

Effective negotiation is more than just presenting your demands and hoping for a favorable outcome. One of the most powerful tools at your disposal is the ability to ask the right questions. Questions open the door to deeper understanding, reveal hidden interests, and create opportunities that can transform the negotiation process and lead to better outcomes.

Asking questions demonstrates that you're engaged and paying attention. It signals to the other party that their opinions and concerns are being heard, which fosters trust. When people feel listened to, they are more likely to reciprocate by being open to your ideas and proposals.

Asking the right questions also uncovers key information that may not have been initially shared, prevents miscommunication, and shifts the conversation from adversarial bargaining to problem-solving.

Next time you're in a negotiation, remember that asking is often more powerful than telling.

5. Be aware of bias

The doom loop isn’t just emotional; it’s cognitive. Litigators often fall prey to cognitive biases that cloud their judgment —confirmation bias, the framing effect, and the sunk-cost fallacy, to name just a few. Being aware of these biases can prevent poor decision-making.

For example, the sunk-cost fallacy can lead litigators to continue a case even when it’s clear that settlement would be a better outcome, simply because so much time and money has already been invested. Recognizing these biases is the first step in overcoming them.

6. Know your case inside and out

Preparation is critical. Knowing your case as well as or better than your opponent gives you an inherent advantage in negotiations. Do your initial case assessment, stay up to date on legal research, and periodically check for new developments that could impact your case. This level of preparation allows you to present your position clearly and confidently, reducing the likelihood of surprises and improving your chances of reaching a favorable settlement.

7. Share your position

One of the most significant obstacles to productive negotiations is the element of surprise. To avoid this pitfall, clearly share your position with the other side—and explain why you hold it. If you expect the opposing party to recognize the strengths of your case, they must first understand the merits on which it is built. This is where “knowing your case” becomes essential.

If you possess information that strengthens your case, provide it to the other side in the simplest, most cost-effective manner possible. Rather than waiting for the other party to request it during discovery, offer the information upfront. Highlight key facts and arguments so that the opposing side has a clear roadmap of your stance. Getting important information on the table early can significantly improve the outcome by reducing misunderstandings and creating a framework for meaningful negotiation.

8. Understand the opposing position and interests

While building a good rapport with the other side is beneficial, a productive negotiation requires more than just positive relationships—you must also understand the other party’s position and interests. It’s crucial to discern not only what they are asking for but also why they want it. Understanding their interests allows you to craft offers that maximize their gains while minimizing your losses.

Avoid making assumptions about the other side’s motives. Instead, be inquisitive. Ask them directly what they want and why they believe their requests are reasonable. Because you’ve cultivated a professional relationship, asking these questions will likely be easier, and the information you gather will be invaluable in finding a resolution.

It’s equally important not to rely solely on your perspective when evaluating the opposing position. Your inherent bias toward your own side can create blind spots, leading to flawed assessments. To counteract this, seek neutral insight from outside sources. This could involve consulting with a mediator, asking friends or colleagues for their impartial opinions, or even organizing a mock jury or focus group in more complex cases. Gaining a fresh perspective can help you see the strengths of the opposing side’s argument and lead to more informed, strategic decisions.

9. Be cost-conscious

Not every case requires a full-scale defense. Tailor your strategy to the situation at hand and be mindful of costs. A Cadillac defense might be overkill for a Chevrolet case. Make efforts to minimize spending by focusing on obtaining only the essential information needed for productive settlement negotiations.

Evaluate the potential for settlement discussions early in the process and continuously reassess as new information comes to light. Be creative in finding cost-effective solutions. For instance, do you really need sworn depositions from every witness? If settlement seems likely, perhaps a recorded Zoom meeting will suffice for the time being, reserving the right for formal depositions if negotiations break down.

10. Take care of yourself

You can’t pour from an empty cup. Even under the best circumstances, this is demanding work. The pressures of the profession can be compounded by factors such as conflicting interests between an insured and their insurer, friction between adjusters and defense counsel, and sometimes outright hostility between opposing counsel. Heavy workloads, quotas, and billable hour requirements only add to the strain, creating an environment ripe for burnout. This stress can lead to more serious issues, such as anxiety, depression, or even substance abuse, all of which can negatively impact both job performance and overall well-being.

Proactively establishing and fostering a positive working relationship with the other side can help alleviate some of this stress. Even when the relationship is contentious, there are still steps you can take to protect your well-being and perform at your best. Options include meditation or mindfulness exercises, a healthy diet and exercise, breathing techniques, and self-development tools such as journaling. Don’t hesitate to seek help when necessary.

Avoiding the doom loop takes forethought and a growth mindset. You must be proactive, with a focus on problem-solving, as opposed to “winning” and “losing”. You may have to put in a little more effort up front. But with those efforts, you will achieve better outcomes. You will find more enjoyment in your work. And you will feel better about yourself and your life.