What's Trust Got To Do With It

In my career I have gained insight into the reasons why some matters are resolved voluntarily and others are not. In my experience, there is a common denominator throughout these matters: trust. Unless the parties attempting to resolve a dispute come to trust one another on at least a minimum level, the dispute is not likely to be resolved without litigation. This minimum level of trust to which I refer does not amount to the kind of trust a child develops with a parent. What I am describing is a recognition by an opponent that the other sides’ positions might receive some acceptance from a neutral third party. Without this type of trust the controversy is likely to continue. Prior to engaging in pre-trial conference conducted by a judge or a neutral, all parties to the controversy should determine whether they have this kind of ‘trust’ in an opponents’ position. If they do not, they should not engage in such a conference, unless it is to conduct “discovery’ as I have suggested in an earlier article.  

Litigants, claim personnel, and lawyers sometimes do not address the “trust’ issue as we are preparing for the resolution session. I think this occurs because we are trained/hardwired to be as aggressive as possible in representing our clients’ positions. So, as the case unfolds, and we are discussing the case with one another we consistently diminish the opponents’ case and over emphasize the strength of our own case. This often leads one party to focus on only the positive aspects of their case, making the voluntary resolution of the dispute more difficult. When one, or all, of the participants do not believe that they can lose, why should they compromise? It has been my experience that cases that have a chance to resolve do so when all participants concede that the opponents’ position, legal or factual, has some likelihood of success.

Lets direct our discussion of trust to the role of attorneys. An attorney who is involved in one of these situations has a responsibility to advise her/his client of an opponent’s likelihood of success. This should be done deftly and prior to the resolution conference to set the stage for a positive outcome. If one attempts to do this in the conference, it will definitely lead to a long and difficult session. The client, when hearing for the first time that the opponent’s position might actually have some validity, will take a dim view of the person providing this “news” and just might shut down the process. If one spends some time prior to the session discussing the other sides likelihood of success, one can take an aggressive approach at the outset and slowly adjust that approach as the session proceeds. This will lead to a constructive discussion of the various issues which must be resolved for the matter to be resolved.

When the mediation is interrupted by these unintentional breaks, litigants may begin to question the process, their representatives and fuel further communication breakdowns. This is definitely a situation which those involved in the representing of litigants will want to avoid. No matter how obvious this point may seem, in my experience the issue of trust is often overlooked. In order to avoid costly breaks in the negotiating process, it is vital to foster a sense of trust between all parties in a mediation. For anyone involved in representing litigants, trust is an essential ethic in the successful mediation journey.