Trust: making a leap of faith in mediation

In the immediate aftermath of World War II, a conflict developed in President Harry Truman's cabinet with respect to the manner in which research and development of nuclear weapons should proceed in the future. The essence of the conflict was this: several members of the cabinet, led by Secretary of War Henry Stimson and Commerce Secretary Henry Wallace, supported the idea advanced by Dr. Robert Oppenheimer (the chief scientist of the Manhattan Project which developed the two atomic bombs dropped on Japan) to develop nuclear weapons under the umbrella of an international organization in a way that would not cause the Russians to mistrust the intentions of the U.S. and rush to develop their own atomic weapons. Other members of the cabinet, led by the president's advisor James Brynes, advocated full-scale, unilateral development, with the idea that if the U.S. alone had these powerful weapons it would provide a bargaining chip in on-going negotiations with Russia, which was in the process of attempting to expand its sphere of influence in Eastern Europe, Manchuria and elsewhere.

Stimson had been deeply ambivalent about using atomic weapons to end the war, but he was strongly in favor of international controls on nuclear weapons. In speaking on the subject, he said, "The chief lesson I learned in a long life is that the only way you can make a man trustworthy is to trust him; and the surest way to make him untrustworthy is to distrust him." Along the same lines, Stimson also said, "The only deadly sin I know is cynicism."

Naturally, this got me thinking about the role of trust, and its antithesis, cynicism, in mediation. I concluded that there's more than enough cynicism to go around but Stimson would be severely disappointed in the lack of trust.

Why is cynicism so endemic and trust so painfully lacking in the mediation context? And how could we readjust the balance so that trust outweighs cynicism? The current balance most probably results from a combination of factors. It's not a news flash that lawyers, by nature, trend toward cynicism. After all, the daily diet of lawyers in contested matters is composed in large part of clients who subtly (or not) shade the truth, or outright lie, or manipulate (the more polite word would be "negotiate") - not to mention that lawyers suspect that their opposing counsel are doing all of those things and more. In addition to this "natural" tendency toward cynicism, to some degree lawyers, rightly or wrongly, use the mediation process in a cynical way. Some lawyers use the process not for the purpose of reaching a settlement, but for the purpose of obtaining "free" discovery. Or to "soften up" their adversary in anticipation of a later "money day" mediation. Or they use it for other reasons that are not intended to result in a settlement at the end of the mediation process.

Other lawyers, even if they approach the process with the goal of settlement in mind, view the process itself somewhat cynically. They demean the process of a neutral third party helping the litigants and their counsel assess risk by characterizing risk analysis as a "scare tactic" or a "beating up" process. They may say that the settlement process is nothing more than an inappropriate effort to "split the baby" without regard to the merits of the dispute.

A third factor that contributes to ever-increasing cynicism is the gradual erosion of professional courtesy, particularly in a large community of lawyers (where lawyers feel less constrained to be polite because it's unlikely that they will ever deal with their opposing counsel again on another case). And a fourth and substantial factor is the rapid erosion of public confidence in government institutions (of which mediation has become a significant part), including the political system and the courts. Recent studies (a 2011 Gallup Poll) show that less than half (46 percent) of the public have confidence in the U.S. Supreme Court, in part due to the court's ruling in Bush v. Gore, a case perceived by a majority of the public to have been decided on the basis of politics and not legal principles. In a more microcosmic way, litigators are especially prone to cynicism because they experience on a daily basis what they perceive as arbitrary rulings and judgments in court.

How might it be possible, for even a cynical person, to have more trust in both opposing counsel and the mediation process in general? A good starting place would be the simple fact that in the overwhelming majority of instances the opposing parties and their counsel, surprisingly, share the same goal: They wish to end their involvement in a lawsuit or resolve a dispute without litigation. Thus, they "oppose" one another in name only - in fact they each wish to reach the same [overall] result (obviously, the details are important and likely they each see the "right" result much differently).

It's interesting to put this simple proposition into context. Pretend for a moment that you are in a negotiation outside mediation. To some degree, you probably believe that the other party to the negotiation shares the same goal - to make a deal - but when you start that negotiation you never really know how strongly everyone wants to reach a resolution. With this in mind, think about the following two situations and whether your level of trust would be higher in the second than in the first: In the first situation, you or your counterpart call and say, "We have a proposal that we would like you to consider." In the second situation, you or they say, "Let's find someone to help facilitate our negotiations so that we are more likely to make a deal." In a mediation environment, that's exactly what occurs, even if it's not actually said: both parties want to find some to help them reach a resolution. Thus, they are both pre-committed to the concept of reaching a settlement and they are both actively working toward an identical goal.

An equally good second step might be to take Secretary Stimson's advice to heart (in a non-cynical way). In considering this, think for a moment about raising children. One way to have children behave in a trustworthy manner is to trust them (and let them know that's what you are doing). I don't think that adults are much different in this particular respect. My experience is that when you let someone know that you trust them, generally they try to earn that trust.

The question is: What prevents us from more often encouraging others to act in a trustworthy way? I believe that it's mostly fear that your trust will be met not with an equally trustworthy response but instead a cynical response. In other words, it's the potential for this clash between trust and cynicism that creates the atmosphere of fear. Admittedly, the fear of encountering a brandished sword in response to the offer of an olive branch is difficult to overcome. In mediation this fear is especially acute and often seen in the context of making "bottom line" demands and offers. Making a bottom line demand or offering what you intend to pay is an act of faith - you are trusting that your adversary will respond with equal good faith. There is no guarantee that this will happen, and much of the success in this approach depends on nuances of communication and relationships. How you and the mediator communicate a "trust based" offer or demand may make the difference between success and failure. Similarly, if you have a good history with your adversary, the chances of reciprocal trust are better. If you have no history, or a bad history of broken promises the chances are worse.

It is interesting to think about these issues 67 years after Stimson made his comments about trust. After much debate, Truman was persuaded by the Byrnes faction and he made the decision to drop the atomic bombs on Nagasaki and Hiroshima, and also decided to pursue the unilateral development of nuclear weapons. We will never know what would have occurred if the atomic bombs hadn't been dropped on Japan, or whether the process of developing nuclear technology under the governance of an international organization would have succeeded. But the next time you are faced with an equal choice between trust and cynicism, perhaps you might take the leap of faith in the direction of trust. The outcome might be surprisingly good.