My son has recently discovered one of Nintendo’s earliest games: Mega Man. Mega Man is a blue robot that runs around shooting evil robots with his plasma blaster. On the top left side of your screen, there is a “health meter” that starts full, with yellow health lines, but reduces to black little by little every time Mega Man is hurt. He can restore the health meter by destroying a robot or finding batteries and returning his health to full. Once there is no health remaining, Mega Man “dies.”
As I watch my son play this game (and “reluctantly” take over the challenging levels), it occurs to me that this is a great analogy for the importance of credibility in negotiations, specifically conflict resolution.
Imagine we all begin every meeting and transaction with another person with a pre-set, full credibility meter that looks like Mega Man’s health meter. The reason it is full is that the average person you meet presumes that you are not lying when you open your mouth — you have full credibility to say anything. This credibility meter goes down every time you say or do something that is inconsistent with either what you have said or demonstrative evidence around you. For example, you walk up to a person and say you are a famous movie star, but when they search the internet and can’t find any movie credits to your name, you lose a bit from your credibility meter.
You can also earn credibility back — some people call this “damage control.” In the previous scenario, you tell the person, “Oh, I was just kidding” — some or all of the credibility is restored depending on the delivery of the joke.
Once your credibility meter is empty, you are effectively “dead” to the other person. There is no transaction or resolution that can occur in any circumstance between the two parties because there is no longer any trust. I have seen, for example, in a creditor-debtor scenario at the point when credibility meters are empty, a debtor finally showing a contract drafted by an arms-length third party with a deposit to confirm money will be paid to the creditor and the creditor still believing it to be fraudulent.
Every person starts with a full credibility meter and hires a lawyer who, in turn, maintains their own full credibility meter. Many times, certainly in a litigation context, what prevents settlement is that the credibility meters of both the parties and their lawyers are empty, so settlement is impossible. For example, a lawyer who engages in sharp practice or is not civil reduces his credibility meter. On the other hand, some individuals consistently hold a reputation of being “tough” or acting unpredictably, which ironically maintains credibility for that person because you can be assured of their unpredictability.
Sometimes, lawyers and their clients take actions that inadvertently reduce their respective credibility meter. A common example of this is the threatening legal letter. Unless there is a statutory reason for providing a legal letter to preserve legal rights, threatening legal letters are ineffective tools and almost always reduce one’s credibility meter. A letter saying “cease and desist” without following up with a claim is an example of saying one thing and doing another, which reduces credibility in the future.
Another common example of inadvertent reduction of the credibility meter is the offering of a settlement early in a conflict. Obviously, one party does this to resolve the matter quickly, but often this has the opposite effect: it creates the belief in the other side that the party wishing to settle has a weak case. After all, if your case is strong, you would not offer a settlement so early — inconsistent actions with words lowers your credibility meter.
As mentioned above, a credibility meter can be earned back with small “wins.” Winning a motion, providing third-party reports that confirm your position, and following through with deadlines and offers all improve the meter. Also, a lengthy passage of time also improves the credibility meter —both sides can be reasonably certain the other is exhausted and more willing to resolve a claim.
Lawyers have credibility meters with their clients. Telling a client not to worry about an issue that later arises ruins credibility, as does failing to communicate with them in a timely manner. Clients also have credibility meters with their lawyers, which reduce when they fail to pay on time or take a position they cannot substantiate, leaving the lawyer “out to dry” (and thus reducing their credibility meter with opposing lawyers or judges they may meet in the future with other clients). When the meter is empty, there is often a need for a change in representation.
Keeping track of the credibility meter with other individuals and balancing this is crucial to the execution of solutions. Keep track, replenish with actions that restore the meter with a person or walk away when empty. Otherwise, it will be game over.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
