Recently, I wrote a blog about an almost mediation that was cancelled at the last moment because the attorney representing one party was not going to be present but sending a substitute instead. While the theme of that blog was that the parties lost a valuable opportunity to settle, there is another theme as well: trust.

In my years as a mediator, the two most important things I have learned is that before I am able to help people resolve their disputes, I must develop a relationship with them and more importantly, gain their trust. Without their trust, my mission to help settle cases cannot be accomplished.

Indeed, in the mediation mentioned above, I wonder what damage was done to the trust factor not only between plaintiff’s counsel and defense counsel, but between each attorney and her respective client. Once that trust is lost, it is difficult and time consuming to gain it back.

This point is made by Robert Cialdini in his new book, Pre-suasion (Simon & Schuster Paperbacks, 2016). The theme of his book is how to prime others so that they will agree to your request. Or, to quote “… the ancient Chinese military strategist Sun Tzu… ‘Every battle is won before it is fought.’” (Id. at xiii.)

The author makes this point with a story about a salesman. After the salesman makes part of his presentation, he exclaims that he left some of the materials in his vehicle and must go get them. To do this, he excuses himself and is often given the key to the front door so that he can let himself in without disrupting his clients who are taking a simple test he has just given them.  By giving the salesman the key, the homeowners have impliedly signaled that they trust the salesman. Having gained their trust, the salesman has “primed” the homeowners to agree to purchase what he is selling. (Id. at 6-8.)

And, the loss of that trust can be substantial. In the last chapter of his book, the author discusses the ethics of using pre-suasion. He notes that studies indicate that “…large economic injury has been shown to flow from the reputational impact of false advertising, deceptive bidding practices, and financial misrepresentations.” (Id. at 211.):

For example, a 2005 study of 585 firms subjected to US Securities and Exchange Commission (SEC) enforcement proceedings for financial misrepresentation found that, on average, companies lost 41 percent of their market value after the misconduct was made public and that nearly two-thirds of the loss stemmed from reputational harm. Indeed, 80 percent of Americans stated that their perception of the ethicality of a company’s business practices has a direct effect on their decisions to purchase its goods or services. (Id. at 211-212.)

 The author further notes that once a company loses the public’s trust, it can take years to regain it and does so only after the company has been able to convince the public that it has changed its ways.  (Id. at 212.)

And so it is on a personal level. Or, as the saying goes, “Fool me once, shame on you, Fool me twice, shame on me.” Once, a person loses another’s trust, it is extremely difficult if not impossible to have them agree with you on anything, much less be willing to compromise a dispute.

Trust- it is the first, last and most important element in any relationship and in resolving any disagreement. Once you gain it, treat it as precious cargo.

… Just something to think about.



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