Australia is a pretty, dangerous continent. My wife’s brother lives there, so we get to hear tales of saltwater crocodiles and other various forms of poisonous vermin. The travel writer, Bill Bryson, in his book on Australia, “In a Sunburned Country,” described the dangers: “If you are not stung or pronged to death in some unexpected manner, you may be fatally chomped by sharks or crocodiles, or carried helplessly out to sea by irresistible currents, or left to stagger to an unhappy death in the baking outback.” Australia can be unsettling.
So leave it to an Australian philosophy and government professor, Robert Goodin, to pen a remarkable little book, “On Settling.” The ad copy touted the book as an argument for settling. The book seemed the exact opposite of the self-help and business books that constantly urge us to strive for more, so I was intrigued.
Goodin, in part using Australia and the American West, makes a great case for the benefits of settling. In harsh climate and terrain, a settlement is where you want to be. Settling provides stability.
Laws serve the purpose of settling our society. We can enter contracts and business arrangements knowing that the law is settled. Being able to rely on an established outcome brings confidence to our transactions.
This is why any major new legislation has numerous people wondering and worrying about the new law’s impact. It takes time for the new law to settle. When a crisis hits, such as in 2008, the economy goes into free fall because so much is unsettled. You can’t be effective in business — or life — when things aren’t settled.
Settling, when done right, isn’t passive or even conservative, but rather a concerted effort to reach a beneficial balance. As citizens, through our proxy legislators, we need to demand the laws be designed to settle current conflicts and societal strife, not exacerbate them.
The settled example that springs to mind is Social Security. Amid the upheaval of the Depression, Franklin Roosevelt described the purpose of the new law to Congress in 1934: “This seeking for a greater measure of welfare and happiness does not indicate a change in values. It is rather a return to values lost in the course of our economic development and expansion.”
At the time, Social Security was extremely disruptive, but it addressed an economic challenge. Now that it is settled, it represents almost 40 percent of our elderly’s income.
Pioneers didn’t settle the Salt Lake Valley by making sure the status quo continued. They worked hard, fought off drought and pestilence and created a settlement that continues benefiting us all to this day. This proactive settling is how we need to debate and implement our laws.
Maybe it is the constant striving in the American identity, but settling carries an unfortunate negative connotation. Yet in litigation, settling almost always makes sense. As an attorney, talk to a client about settling a case and suddenly you are dealing with every negative emotion the client has relating to the case.
Settling litigation is hard work and rarely comes easily. Each side is vested in its narrative of past events and resolution means that something must be surrendered. Yet, a good settlement takes into consideration the strengths and weaknesses of both sides of the argument, along with a good dose of empathy. A positive aspect of settling is that it takes control away from the judge and gives it back to the client.
The uncertain becomes certain. In addition, consideration can be given to aspects that may be unrelated to the lawsuit itself, particularly the emotional and financial cost of continuing the litigation. Settling can lead to better long term outcomes for both sides.
At the end of his book, Goodin points out that settling serves an important purpose in our striving as well. As humans and a society, we need a settled base to strive from. Without the settling effect of our laws and regulations, our striving would take place in an environment that is even more dangerous than Australia.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or email@example.com.