“Who are you?” What an interesting question! Are you competitive? Accommodating? Avoiding? Collaborating? Or Compromising?  How you answer these questions reveal your approach to conflict. Each of these personalities approach and manage conflict very differently.

       For more than thirty years, the Thomas-Kilmann Conflict MODE Instrument (“TKI”) has been used to assess how individuals handle conflict which, in actuality, affects their negotiation skills, styles and the outcomes.  (See, http://www.kilmann.com/conflict.html)

       According to this testing device – TKI – there are two types of people in the world in terms of behavior: assertive and cooperative. The assertive person “. . . attempts to satisfy  his  own concerns.”(Id.)  The cooperative person, though, “attempts to satisfy the other person’s concerns.” (Id.)

      Using these two behavior patterns, a person could fall into one of five patterns in terms of   how she handles conflict:

       The first is competitive. Here, a person is both assertive and uncooperative. She will “pursue [her] own concerns at the other person’s expense”. (Id.) This person is very “power-oriented”, using “…whatever power seems appropriate to win. . .” for the simple sake of winning. (Id.)

       The second is accommodating. This person is unassertive yet cooperative. She will neglect “. . . her own concerns to satisfy the concerns of the other person. . . .” (Id.) She self-sacrifices as might be evidenced by “selfless generosity, or charity . . . or yielding to another’s point of view.” (Id.)

       The next behavior pattern is the avoider.   She is both unassertive and uncooperative. She “neither pursues [her] own concerns nor those of the other individual.” (Id.) She simply does not deal with the conflict. Rather, she will sidestep the issue, or postpone it until “later” or simply withdraw altogether.

       The fourth behavior pattern is the collaborator (aka the mediator). She is both assertive and cooperative. She will “attempt to work with others to find some solution that fully satisfies their concerns.” She will look for “the underlying needs and wants. . .” of the persons involved. She will explore the disagreement, looking for insights “. . .or trying to find a creative solution to” . . . the problem. (  Id. ).  ( Sounds just  like a mediator, doesn’t it?)

       The final behavior pattern is the compromiser. She “is moderate in both assertiveness and cooperativeness.” ( Id.) Her “. . .objective  is to find some expedient, mutually acceptable solution that partially satisfies both parties.” (Id.) A compromiser will give up more ground than a competitor but not as much as an accommodator. The compromiser will also confront an issue, unlike the avoider, but will not deal with it in as much detail or depth as the collaborator.

       According to this testing device, each of us, at different times, may use one or all of these behavior patterns. We do not use the same behavior pattern or a single sole style of behavior   all of the time. Rather, we will mix them up, depending upon the situation.  However, one or more of these behavior patterns may feel more comfortable to us so that it becomes the one we use most often or the pattern of choice.

       In sum, people approach disputes differently and so, will negotiate their resolution differently. By understanding the behavior patterns of the negotiators (aka parties) to the dispute (both yours and theirs), you will have a much greater understanding of the dynamics of the conflict, of the parties involved (i.e., what is really going on) and how to resolve it.

       . . . Just something to think about!

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       Last week, my blog discussed the Nash equilibrium which states that “. . .in every situation of competition or conflict in which the parties are unwilling or unable to communicate”  “. . . both sides have selected a strategy. . . [which] neither side can then independently change. . .  without ending up in a less desirable position.” Fisher, Len, Rock, Paper, Scissors: Game Theory in Everyday Life (Basic Books 2008) at p. 18. (Emphasis original.)

       This week, I conducted two mediations in which I witnessed the consequences of this game theory. More importantly, both mediations showed me the importance of communicating with the other side prior to the mediation so that the mediation process is more effective.

       The first was a business dispute. Plaintiff was suing to collect a referral fee based on what it believed had been a referral of close to 3,000 clients to the defendant. The alleged agreement provided for a $10 referral fee for each client to be paid on a monthly basis for so long as the defendant retained the client. In calculating its damages, plaintiff assumed that for the last 3 plus years, defendant had retained these clients. It, thus, calculated its damages to be more than a million dollars.

       Evidently, the parties had not conducted discovery, and the defendant had not shared any sort of accounting records with the plaintiff prior to the mediation. During the mediation, I asked the defendant how many clients were still using defendant, only to learn that over the last three years, defendant lost more than 75% of these clients. Thus, the actual alleged damages were, in reality, far less than $100,000 ( much less the more than the over one million dollars sought by Plaintiff.)  With defendant’s permission, I shared this information with plaintiff but to no avail. Plaintiff was in disbelief and refused to discuss settlement in the amounts being offered by defendant. At this point, the “equilibrium”  was obtained: neither plaintiff nor defendant  could keep going their separate ways without escaping further loss. They must now cooperate with each by sharing accounting records to determine the best solution possible under the circumstances.

       The second mediation met the same fate: it did not settle because, like the first, it reached the “equilibrium” during the mediation. This matter was a “lemon law” case or one brought under California’s Song-Beverly Consumer Warranty Act (California Civil Code §1790 et seq) and the Federal Maguson-Moss Warranty Act (15 U.S.C. §2301 et seq).  Defendant was of the view that plaintiff’s vehicle did not qualify under California law, and the federal statute had only limited applicability to the situation. However, counsel chose not to share this view with plaintiff’s counsel until the mediation. Needless to say, when defense counsel explained her client’s position for the first time at the mediation, plaintiff’s counsel (and plaintiff) became quite upset. While both parties did continue to negotiate in hopes of resolving the matter, it was clear that  this issue was the sticking point because if defense counsel was correct, plaintiff did not have much of a case, but if plaintiff was correct, plaintiff believed the vehicle to be a strong candidate for repurchase.

       Again, the “equilibrium” was obtained. Neither side could continue with its independent strategy without being worse off.  Each must now cooperate with the other to find a solution that provides the best solution possible to their respective clients under the circumstances.

       In both instances, I believe that if the critical information had been shared prior to the mediation, the Nash equilibrium could have been successfully handled during and as part of the mediation process.

       In short, given the Nash equilibrium, it is difficult to switch from a competitive to a cooperative strategy during a mediation with any degree of success. Like everything in life, strategy “shifts” need to percolate for a bit to become effective. If a tectonic shift in strategy is in the winds, it should be implemented  prior to the mediation so that the Nash equilibrium does not thwart reaching a resolution during the mediation

       . . . Just something to think about.

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When I started mediating cases, I never thought that I would have to be aware of or learn advanced mathematics. But a book that I recently finished has shown me otherwise. Entitled, Rock, Paper, Scissors: Game Theory in Everyday Life, its author, Len Fisher, PhD. (Basic Books (2008)) explains how game theory applies to everyday life. In turn, game theory is predicated on the Nash equilibrium, named after John Nash who won a Nobel Prize in 1949 for discovering that all social dilemmas arise from the same basic logical trap (Id. at 7.) Using his mathematical genius, Nash “. . . was the first to identify the logical trap (now known as the “Nash equilibrium”) and then to prove a startling proposition – that there is at least one Nash equilibrium lying in wait to trap us in every situation of competition or conflict in which the parties are unwilling or unable to communicate.” (Id. at 18.) (Emphasis original.)

What is the “Nash equilibrium”?:

“It is a position in which both sides have selected a strategy and neither side can then independently change its strategy without ending up in a less desirable position. . . .”

“Nash called such a state of affairs an equilibrium because it is a point of balance in a social situation, from which neither side can independently escape without loss. . . . So long as we act independently, with each of us pursuing our own interests, the Nash equilibrium will continue to trap us in a plethora of social dilemmas.” (Id. at 18.)

A perfect example given by the author is an acrimonious divorce:

“It would usually pay [sic] [for] both parties to compromise, but so long as one refuses to compromise, it is not worth the other party’s while to give way. They become trapped in a Nash equilibrium so that both lose out through the money they have to pay to lawyers and the emotional stress they end up going through.”

“. . . the parties are trapped in a genuinely paradoxical circle of logic that arises because they are unwilling or unable to communicate and to coordinate their strategies. But there is an escape clause: if the parties can communicate and negotiate, they may be able to break out of the dreadful trap.” (Id. at 23.)

The decisive feature is that the cooperative solution or negotiated agreement must prove more beneficial to each of them than pursuing their respective strategies independently of the other. (Id.) Otherwise, each party will “willingly” remained “trapped.”

In essence, each of us will approach a social situation with a “what is in it for me” attitude and thus pursue our own individual interests over those of the others or even of the collective whole, in the hopes of gaining the best possible deal. But this gain will come solely and only at the expense of every other person involved in the social situation. Only when we realize that if we continue to pursue our separate interests independently of everyone else, the result will be worse for all concerned, do we change our strategy from one of competition to one of cooperation. At this point, we are at the Nash equilibrium and realize that in order to get out of the “trap,” we must stop being competitive and begin to communicate and be  cooperative with each other. By doing so, we can turn a lose-lose situation into a win-win situation, so that everyone walks out a winner.

According to Nash, this theory applies to any social situation in which two or more persons are involved. Take a moment and reflect on a recent social dilemma, replay it in your mind, but this time apply Nash’s theory. . . . See what I mean. . . Life becomes game theory based on advanced mathematics.

Perhaps, mediation is meant to be the apex of the Nash equilibrium. The parties walk in with a “what’s in it for me” attitude and the goal of the mediator is to change the parties’ mindset from competitive to cooperative; to have each party understand that if she continues with her own strategy independently of everyone else involved, the situation will only become worse for all concerned, not better. . . but that the way to change this is to start communicating and cooperating and choose strategies by which each party can win; to go from competitiveness to cooperation; from lose-lose to win-win.

Is mediation the tipping point in game theory? Perhaps so.

. . .Just something to think about.

       I am reading an interesting book, The Science of Settlement by Barry Goldman, MA, JD (ALIABA 2008). In it he discusses how to prepare for and effectively bargain during a negotiation. Towards this end,  Mr. Goldman discusses a lot of different psychological and/or economic principles. One is the “endowment effect” (which I have discussed previously) which means that ‘human beings tend to overvalue anything perceived as “mine.” “ (Id. at 21.) He then quotes from O.W. Holmes:
     

      “It is in the nature of a man’s mind. A thing which you enjoyed and used as your own for a long time, whether property or opinion, takes root in your being and cannot be torn away without your resenting the act and thing to defend yourself, however you came by it.” (Id.)

       In short, people value what belongs to them. (Id. at 21.) This principle seems appropriate this week. It seems to fit in with Thanksgiving: we should value and give thanks for what we have, especially in these trying times. Whatever it is that we do have, no matter how little or how much it may be – value it and give thanks for it.

       Happy Thanksgiving To Every One.

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