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Inspiring trust during mediation, negotiation

By: WISCONSIN LAW JOURNAL STAFF//December 21, 2016//

Inspiring trust during mediation, negotiation

By: WISCONSIN LAW JOURNAL STAFF//December 21, 2016//

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By Michael R. Panter

Before becoming a mediator with ADR Systems, Judge Michael R. Panter presided over civil jury trials, motions and hundreds of pre-trials, taught law school and was an a trial lawyer for 38 years.
Before becoming a mediator with ADR Systems, Judge Michael R. Panter presided over civil jury trials, motions and hundreds of pre-trials, taught law school and was an a trial lawyer for
38 years.

When Ronald Reagan famously quoted the Russian proverb, “trust, but verify,” what he really meant was, “don’t trust at all.”

But in negotiating 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 that 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.

The more you and your opponents can reasonably trust each other, the faster you will come to an agreement. Of course, every negotiation requires an assessment of the risks associated with the proposed deal, and some deals require too much trust to be acceptable.

(You don’t have to be Charlie Brown trusting Lucy once again not to pull the football away; sometimes, walking away really is the best course for your client.)

But most of the time, negotiation and settlement are the best options. 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.

How can you inspire trust when it comes to sit down for mediation? Here are a few ways:

Connect. The more we feel connected to someone, the more we trust him. Connection comes from what we say, and whether we share similar interests and backgrounds (such as friends, schools and work) or even similar difficulties or conflicts. Even if we have nothing apparently in common, we can connect by demonstrating a genuine understanding of each other’s interests. Actions, like looking someone in the eye and talking directly to him or her, develop a connection.

Reveal your own interests and grievances. 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.” Opening the door even slightly to your own thoughts and interests gives those around us something to connect with.

Trust. Trust inspires trust. Sending out a test “trust balloon,” like a meaningful first offer even in the face of a ridiculously high demand, sends an important message: “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.”

Keep your promises. 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.

Explain your position. Flat declarations create suspicion. Why can’t you do X? Why won’t you? Adding those “why” details, even late in a negotiation, helps the other side understand your interests and motivations.

Maintain the trust you’ve established. 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.

Trust truly is a two-way street. It’s your job to instill in your opponent enough trust in you to get a deal. Those who learn to instill trust, naturally and confidently, have acquired a very useful skill indeed.

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