by Antoinette Raheem
(This is continued from last Friday’s Grand Rapids Legal News, in which the author gave a number of reasons why trust is essential in ADR, and talked about trust-
worthiness of “The Apology.”)
TRUST BUSTERS
There are many acts that can undermine trust in a negotiation. Since time and space are limited, I will only focus on a few that I see frequently in negotiations.
Regressive?moves without explanation
One of the worst things a party can do in a negotiation to undermine trust is to make a regressive offer. This means moving further away from the other side’s demand or offer rather than closer to it. For example, a plaintiff who demanded $400,000 in their complaint but starts off at the negotiation table with a $500,000 demand has made a regressive move. Alternatively, a defendant who initially offered $50,000 but makes their next offer $30,000 has made a regressive move.
Obviously the recipient of the regressive move will usually respond with a cry of “bad faith negotiation”. They will say, “I thought we came here to meet somewhere between our respective numbers and now you move further away! How can I trust you?” If the other side is negotiating in bad faith, this kind of regressive move will quickly bring the negotiation to an end.
But perhaps the regressive offer was not made in bad faith. Maybe the regression was precipitated by the discovery of information that made the initial offer or demand unreasonable. For example, in a case where the injury to the plaintiff in an automobile case was first believed to be minor, it is discovered that the injury is much more severe and permanent than originally believed, prompting the plaintiff to increase their demand. Similarly, in a breach of contract case, the losses attributable to the breach could be discovered to be less extensive than originally thought, thus inducing the defendant to When we look more closely at the situation, it is possible that, with the sharing of information (and an honest explanation of why this information was not discovered sooner), both sides could agree that a regressive move is appropriate. However, the key is to start out by sharing the new information and explaining how and when it was discovered, then following with a statement of how this new information has led to a change in the party’s offer or demand. In short, do not make regressive offers if they are not warranted, but if they are, lead with the information they are based on in order to avoid the regressive move destroying any trust built or chance of building trust in your negotiation.
Misinterpreting attention to detail or cautious style as mistrust
Especially when parties had had a relationship before their dispute arose or have some other reason they believe warrants their being trusted by the other side, a call for documentation of agreements on every detail in the settlement can often undermine trust. For example, in divorce situations, parents may both want a college education for their now minor children. Consequently, the husband—knowing the law does not require a parent to pay college tuition-- asks for an stipulation to a term in the Divorce Judgment that each party will pay 50% of each child’s college education. The wife is offended. She responds that she has always contributed fairly to the children’s needs, but given the economic uncertainties in her line of business she cannot commit to any specific amount or percentage at this time. She concludes by saying to the husband “You will just have to trust that I will do all I can.”
The husband then has two choices. He can interpret her refusal to commit as a sign that he cannot trust her—leading him to fight her harder on other issues such as child or spousal support. Or he can recognize that, while his nature is to have every “i” dotted and “t” crossed, his wife has never liked to be pinned down on details. Yet she has, as she stated, always contributed fairly to the children’s needs. Thus, by seeing her response as a difference in style rather than as indicia of untrustworthiness, the husband maintains the trust that the parties have and avoids unnecessary acrimony in the negotiation.
Refusal to acknowledge other side’s strengths
At negotiations everyone wants to focus on their strengths and the other side’s weaknesses. The obvious purpose of this focus is for each party to support their lowest offer or highest demand. However, the reality is that after initial offers and demands, every negotiation involves movement or concessions. Both sides should expect that these concessions will occur. However, all parties should require good reasons for their movements or concessions.
One good reason for movement in a negotiation is acknowledgment of the other side’s strengths. It may, initially, feel like capitulation or a sign of weakness to acknowledge the other side’s strengths, but in reality it helps the negotiation. It is a given in a negotiation that each side has some strengths. If you did not believe the other side had strengths, you probably would not be at the negotiation table. Simply, it would make sense to try the case if you thought you had no reason to lose at trial. So given that each side has some strengths, why not be honest and acknowledge them? This way, rather than insulting the other side and making them distrust you when you doggedly deny the opponent has any chance of prevailing on any issue, you can acknowledge the possibility of strengths on both sides. Moreover, you can use the acknowledgment of a strength the other side may have as a basis for one or more of you planned concessions. This makes your concessions have a basis in an objective factor rather than appearing arbitrary. When your concessions are viewed as based on a good reason (e.g. an acknowledgement of the other party’s strength) your opponent will not expect future concessions from you unless good cause has been shown for additional concessions. This makes the negotiation less of an arbitrary exchange of numbers and more of a principled pursuit of ways to meet each party’s true needs given the realities of each side’s legal, factual and subjective strengths and weaknesses.
Moreover, if you acknowledge your opponent’s strengths, you encourage them (lest they look dishonest) to acknowledge your strengths in return. Having that acknowledgment then gives you a tool to demand a concession from your opponent.
In short, if you refuse to acknowledge the other side’s strengths in a negotiation, not only are you destroying the other side’s trust in you, you are depriving yourself of a tool that can give you more control over your negotiations. Be honest in acknowledging your opponent’s strengths and require reciprocal acknowledgments of your side’s strengths. Then use those acknowledgments to your advantage.
CONCLUSION
Although many attorneys view trust as a sign of weakness to be avoided, it is in fact a necessary and valuable goal to be sincerely displayed, promoted, and not undermined. Once you understand and acknowledge its importance, work on building it in your negotiations. You will see exponentially better outcomes as a result.
Antoinette (Toni) Raheem is the principal attorney in Law & Mediation Offices of Antoinette R. Raheem, working exclusively in mediation and arbitration after 25 years as a litigator. Raheem is an ADR law professor at Michigan State and Cooley law schools. She is the recipient of Trailblazer of the Year, Pioneer, George Bashara, and Businesswoman of the Year awards, and is a founding member of PREMi (a collaborative of experienced ADR Professionals).
