PLAYING NICE
Most of the cases that I mediate are in litigation. They are lawsuits in which each party has hired an attorney to represent him/her zealously, if not, aggressively. Many of these attorneys approach litigation as they would war: take no prisoners, scorching the earth as they “fight” their way to victory!
However, a recent Harvard study reveals that these attorneys and the parties they represent may gain a lot more by playing nice. That is, “nice guys do finish first.” (Id.)
The Harvard study, published in the March 20, 2008 issue of Nature (Volume 452, No. 7185), involved a 100 Boston-area college students playing “a punishment-heavy version of the classic one-on-one brinksmanship game of prisoner’s dilemma.” (Id.):
“Common game theory has held that punishment makes two equals cooperate. But when people compete in repeated games, punishment fails to deliver. . . .” (Id.)
The study found that those who used punishment were the losers. “Those who escalate[d] the conflict very often wound up doomed.” (Id.)
In contrast, those who turned the other cheek and continued to cooperate with a nasty opponent received more rewards.
When considered in the context of a mediation, the results of this study make sense. The purpose of mediation is to reach a resolution that meets the needs and interests of all parties concerned. Mediators (including me) often take an integrative bargaining approach (i.e., win-win) in mediation rather than a distributive bargaining approach (i.e., win-lose). If the parties accept the former approach, they often find that the deal struck in settlement is more satisfying as it meets more of their needs and interests than a deal stuck using distributive bargaining (or a zero-sum game approach). In essence, by working with the opponent (rather than against the opponent) in a cooperative manner, both parties gain more.
In my day-to-day life as a mediator, I have seen this cooperative approach work, over and over again, resulting in settlements that meet the parties’ needs and interests. I am now happy to learn that this everyday experience has been confirmed by academia and scientific study.
. . . Just something to think about.
