One of the panel presentations at last week’s ABA ADR Conference in Seattle led me to wonder whether attorneys perceive mediation negotiations, especially in joint sessions, as a type of "Prisoners' Dilemma".
You may recall the setup for this classic example of game theory. Two co-conspirators (A and B) are arrested and held in separate cells with no means of contacting the other. The prosecutors do not have sufficient evidence to convict the two on the principal charge, so they offer each prisoner a deal: Betray the other in exchange for a lesser sentence.
As such, the best available outcome (freedom) can only be achieved if one betrays the other, and only if the other does not do the same. Because this is true for both parties, the most likely outcome is that they will betray each other, resulting in a 2-year sentence for each. The best mutual outcome (a 1-year sentence) is achieved if the parties cooperate with each other and both remain silent.
It is no secret that most mediators are proponents of joint session work, while the majority of litigation attorneys are not. When the initial framework within which attorneys and parties approach negotiations in mediation is mistrust, it may seem more effective to remain in separate rooms, be aggressive, posture and make few or no concessions than to trust your negotiating partner by revealing underlying interests or making a gesture of good will in the hope that the other side reciprocates. This turns mediation into a zero-sum game – one side can win only if the other side loses.
However, if the mediator uses joint sessions wisely, and properly prepares the parties, there is a high potential for a productive and beneficial exchange of information. The joint session can eliminate the specter of the nameless faceless "other" who can be blamed and vilified. Parties have the opportunity to speak to each other directly across the table, discovering interests that can often be addressed without giving up much or anything of substantive value. If nothing else, this lays a solid foundation for negotiations.
Indeed, mediation practitioners report that over-performance (i.e., making more generous offers than are expected by the other side) is generally reciprocated. In this, mediation is very different from the “Prisoners’ Dilemma”, because there is an opportunity for direct communication. If the parties enter the mediation willing to listen to each other and – at least initially – give each other the benefit of the doubt, they may find that they can achieve more of their goals by working together than each of them could achieve individually.