This is a brief extract from the ‘Mediation Advocacy Skills’ section of my forthcoming book, the 2nd Ed The Contentious Probate Handbook for the Law Society:
There are two reasons why this is so:
(1) A party in dispute (P.1) is better off pursuing an ‘unconditionally constructive’ relationship with their opponent (‘P.2’), whether or not P.2 reciprocates, because ‘relationship issues’ do not fit the ‘Prisoner’s Dilemma’ model in ‘Game Theory.’
(See further: Poundstone, William (1993) Prisoner’s Dilemma: John Von Neumann, Game Theory, and the Puzzle of the Bomb, Anchor Books; Wisdom University (2023) The Art Of Game Theory: How To Win Life’s Ultimate Payoffs Through The Craft Of Prediction, Influence, And Empathetic Strategy (Navigate The Labyrinth Of Decision Complexity); and Fisher, Roger and Scott Brown (1988) Getting Together – Building Relationships, Penguin Books). So, the more P.1. (i.e. as the ‘adult in the room’) works to understand P.2, the more P.1 can anticipate P.2’s moves, even if hostile. Mutual understanding requires the adoption by P.1 of an ‘unconditionally constructive’ approach to P.2.
(2) If P.1 pursues a ‘strategy of attrition’ against P.2 in litigation, not only is this likely to later come back and bite P.1 in costs, i.e. resulting in only a ‘pyrrhic victory’ if he wins, but it will also lead to an escalation of costs on both sides. That is because if P.2 counter-retaliates, ‘partisan bias’ will cause P.1 to evaluate P.2’s behaviour as being disproportionate and worse than his own. Since P.1 is likely to interpret P.2’s behaviour as worse than P.2 intended, P.1 will reciprocate with behaviour, that in costs, is even worse, i.e. to up the ante, as in a game of poker. (See further, Lubert, Steven (2006) Lawyers’ Poker – 52 Lessons That Lawyers Can Learn From Card Players). This behaviour leads to a downward spiral of both substantive actions and reactions in what is the litigation equivalent of ‘escalation dominance’ in war, until no one is left standing.
Instead, P.1 can pursue an ‘unconditional strategy’, without risk. As Fisher and Brown wisely observe on p.202 of their book (see above), ‘if you are acting in ways that injure your own competence, there is no reason for me to do the same. Two heads are better than one, but one is better than none.’ See, ‘Adopt an unconditionally constructive approach to your opponent – treat him as a partner’, below.
Thus, how you conduct yourself as a Mediation Advocate will determine whether a dispute will de-escalate or escalate.
That is a big responsibility for all of the professionals involved in a Mediation. It is also presents them with a shared opportunity to deliver an outcome that is acceptable and satisfactory to the parties in dispute.