In his 2005 Ted Talk “The Paradox of Choice” Barry Schwartz presented an insightful condemnation of the “official dogma” of the modern, western, industrialized world. The “official dogma” states that real freedom comes from maximizing choice. Seems reasonable, even obvious. However, he emphasizes that too much choice has two negative effects on people:
- Too much choice produces paralysis rather than liberation. With many options to choose from people find it difficult to choose at all; and
- Too much choice makes us less satisfied with the result of our choice even if it was a good decision. This is because of four intersecting explanations:
- Regret: If our choice ends up not being perfect it is easy to imagine that we could have made a better choice;
- Opportunity costs: it is easy to imagine attractive futures with the alternatives we rejected;
- Increased expectations: having too many options increases expectations for the choice we make; and
- Self-blame: if we are disappointed with our choice, we believe we could have done better (with another option) and we blame ourselves. He links this piece to the rising levels of clinical depression in our society.
Further, the Kellogg School of Management suggests that an abundance of options also leads to less engagement with the final choice.
There is a sweet spot between a lack of freedom and excessive choice. The question is how to find it. Schwartz suggests:
- Delegate Decisions: “Choose when to not to choose,” says Schwartz. “Instead of choosing, ask a friend who recently made a similar decision what they chose and just get what they got.”
- Set Limits: Schwartz says making arbitrary rules for yourself can save time and energy when it comes to an abundance of options. Only visit 3 websites or stores to limit your options.
- Create Reasonable Standards: “Learn that good enough is virtually always good enough. If you go into a decision looking for a good enough result, the choice problem will take care of itself.
In the current world, the public desires more autonomy and control over decision-making in their legal matters and, especially if they start with Google, they often end up with an overwhelming number of process and outcome choices, many of questionable quality.
In their Slaw posts in February and March 2017, Nora Rock and Dan Pinnington referred to the Paradox of Choice (and the difference between “maximizers” and “satisficers”) in the context of lawyer wellness and balance. I’d like to provide some thoughts about this issue in the context of a) the role of lawyers as advisors, b) the mediation process and c) justice reform.
1. The Role of Lawyers as Advisors:
Lawyers often act as valued gatekeepers for their clients’ process and substantive options. They know of the (many) varied process options available to the client and have a responsibility (often a statutory duty such as under s. 8(2) of the BC Family Law Act) to review the options and to recommend a short list for the client’s consideration together with pros and cons. This is different than arbitrarily limiting choices. The lawyer uses his or her experience and expertise to identify (from the long list) those process options that fit best with the client’s needs, interests and goals, and with the situation. This is a carefully curated list which the lawyer and client can review together without causing the client to become overwhelmed. [Note 1] Experienced counsel tell me that their clients look to them for recommendations, not endless lists of possibilities.
2. The Mediation Process:
One of the intended benefits of the mediation process is to provide the parties with increased empowerment and self-determination over their own process and outcomes. As noted above, however, care needs to be taken to avoid the negative effects of excessive choice.
Lawyers again have a role in advising their clients in mediation and to help them limit the options to be considered or presented. Mediators can assist by either assisting the parties to design and use a decision-making framework including criteria against which to assess settlement proposals, for example.
3. Justice Reform:
Many innovative options are being created for out-of-court and court processes, many of which involve technology. Innovation is much needed and new tools and processes are one way to meaningful system change. However, in our enthusiasm to increase tools and pathways we are at risk of creating a bewildering plethora of choices for clients. Those who cannot access legal advice (either through full-representation or unbundling), need a service (guide/helper/navigator) to hear the story, consider the process options and present a short list of viable alternatives that best meets the person’s unique situation.
The pathway approach is well-suited to incorporate this approach. The service could be provided in person, supported by technology (real-time or asynchronous), or perhaps using a guided pathway similar to BC’s Civil Resolution Tribunal’s Solution Explorer or MyLawBC. People providing these services need solid qualifications and training but do not necessarily need to be lawyers.
People in the justice system are already under significant stress (emotional, psychological and financial). We do not want the system to exacerbate that stress and endanger their mental health. If we can find the “sweet spot” between no choice and too much choice then we may be able to increase their satisfaction with, and commitment to, their decision(s), to protect their mental health and, hopefully, to increase their satisfaction with the justice system as a whole.
Note 1: The same should apply to substantive options. In the words of former BC Chief Justice McEachern in a professional negligence case, “on the other hand advising” causes clients confusion and annoyance. R & L Contracting Ltd. v. A & B et al. (Vancouver Registry No. C782554, January 14, 1980 [summarized 1 A.C.W.S. (2d) 347]). Hat tip to my husband, Robert G. Ward Q.C.