The one thing I love about being a mediator is that it constantly brings new challenges and new insights into people. A recent mediation is no exception.

In that mediation, for the first time, defense counsel advised that her client wished to proceed to trial because it believed that the alleged defect was not caused by a defect in workmanship and materials but by human intervention. It was not willing to offer any meaningful sums to settle.

This news frustrated and angered Plaintiff’s counsel, leaving her to wonder why she had spent the time and money to come to mediation only to learn that the defendant did not really want to settle.

How could this scenario be avoided? By a telephone call  from defense counsel to plaintiff’s counsel ahead of time regarding the latter’s decision to try the case.

Some might say that counsel has no “duty” to do this. But, it is not about “duty”. It is about building a relationship and trust. As these attorneys have quite a few cases together, having a good relationship is important. But, to have that relationship, each must have a certain degree of trust in the other. Being up-front, open and transparent about the client’s position help builds that trust. One can not play “hide the ball” and expect the other to trust and respect you.

The Harvard Business Review recently published a series of articles on Trust. While the articles are aimed at leadership in companies, they still  provide valuable advice for the rest of us. One of the articles, The Three Elements of Trust, written by Jack Zenger and Joseph Falkman published February 5, 2019, states that are three clusters of items that often form the foundation of trust: Positive Relationships, Good Judgment/Expertise and Consistency. (Id.)

To build a positive relationship, one must, among other things, stay in touch with the issues and concerns of others, balance the results with the concerns of others, generate cooperation between others and resolve conflicts with others. (Id.)

Good Judgment/Expertise means just that: to use good judgment in making decisions. And Consistency means walking the talk and not only honoring commitments and promises but following through on them.  (Id.)

While I recognize that there is a big difference between working with others who are on the same side as you vs working with an adversary, I do believe that some of these elements are applicable to working with an adversary.  It is important to  stay in touch with the issues and the adversary’s concerns (view this as win-win negotiations!) and to balance the outcome with your adversary’s concerns (i.e., enlarging the pie rather than simply dividing it!). And equally important,  generating cooperation is imperative as the U.S Supreme Court long ago noted that trials should not be “…more of a battle of deception than a search for the truth.” Hickman v .Taylor , 329 U. S. 495, 507 (1947).

Similarly, using good judgment is important as is consistency: honor and follow through on commitments and  promises.

I am a firm believer that one catches more flies with honey than vinegar. If defense counsel had been upfront about her client’s position ahead of the mediation, she would have garnered trust and respect rather than anger and frustration. It would not surprise me if in the future, plaintiff’s counsel will be much more circumspect in her relationship with this particular counsel and make it harder to resolve cases.

… Just something to think about.


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