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Mediation Circus: Trust is key to reaching agreements
MICHAEL R. PANTER
Law Bulletin columnist
Published: August 23, 2016
Ronald Reagan famously quoted the Russian proverb, “Trust, but verify,” essentially meaning, don’t trust at all.
In coming to agreements, the converse is probably more true: “Verify, but trust.”
Because even after our most diligent verification and despite all of our most cynical planning, no deal can be made without some degree of trust. Deals require that leap of faith which everyone — especially trial lawyers — fear like the plague.
But that’s how it is: No trust, no deal. And most lawyers need to make deals in most of their cases.
You don’t have to be Charlie Brown trusting Lucy once again not to pull the football away. Every negotiation requires assessment of the risks associated with the proposed deal. Some deals require too much trust to be acceptable.
The more you and your opponents can reasonably trust each other, the more efficiently you will come to an agreement. In litigation, that means fewer objections and less time in the motion courts. In mediation, it means more cases that can be settled earlier and more efficiently.
Trust is a two-way street. You need to get your opponent to trust you enough to get a deal. The ability to inspire trust in others is an immensely valuable skill because trust is immensely difficult to obtain.
Thoughts on inspiring trust in mediation:
Connection inspires trust. The more we feel connected to someone, the more we trust them. Connection comes from what we say, whether we share interests, similar conflicts and backgrounds (like friends, schools and work). Even if we have nothing apparently in common, we can connect by demonstrating real understanding of another’s interests. Actions, even looking someone in the eye and talking directly to them, develop connection.
Revealing our own interests and problems inspires trust. For example one can acknowledge “I have a very difficult client” or “I get a bonus if I can settle this case by the end of the year.”
Trust inspires trust. Sending out a test “trust balloon,” like a meaningful first offer even in the face of a ridiculously high demand, sends the message that, “We invite you to see that we’re serious about settling the case for a fair price. Trust us by responding with a more meaningful demand.”
Do not agree to anything that you cannot deliver and deliver whatever you agree to. Virtually nothing destroys trust faster than not living up to your word.
Explaining your position promotes trust. Flat declarations create suspicion. Why can’t you do X? Why won’t you?
Nourish the embers of trust like Tom Hanks’ character trying to start a fire in “Castaway.” When those embers go out, they’re hard as heck to relight.
Litigation is adversarial. Litigators are paid to “suspect everyone and suspect no one” (in the words of the great Inspector Clouseau).
Author Stephen Covey called trust the most essential ingredient in effective communication and the foundational principle that holds all relationships. Trust is hard to come by in our world. So is gold.
Hon. Michael R. Panter (Ret.) is a senior mediator at ADR Systems of America LLC. He previously served in the Law, Family and Municipal Divisions of the Cook County Circuit Court. He was a trial lawyer for 30 years. Share responses and comments at mikepanter.com.