Game Theory provides a framework for analysing the parties’ rational, self-interested decision-making in interdependent situations.

Even purely self-interested parties can achieve a better outcome through cooperation, i.e. settlement as a result of Mediation, than through pure competition, i.e. Litigation.

If all parties litigate aggressively, then they both ‘betray’, and thereby each incur high costs and stress, resulting in a ‘suboptimal’ outcome for everyone involved compared to a negotiated settlement.

In the context of the Mediation of a Contentious Probate dispute, ‘betraying’ might equate to litigating to the fullest extent, hoping for a big win; while ‘cooperating’ means compromising in Mediation.

Mediators must recognize that each party’s outcome depends not just on their own actions, but critically on the other parties’ decisions.

This inherent interdependence is the foundation of ‘Game Theory’, and highlights why a facilitated negotiation process is crucial.

The classic Game Theory Model is the ‘Prisoner’s Dilemma’ analogy.

This illustrates a scenario in which two rational, self-interested individuals choose not to cooperate, even though they would both be better off if they did.

The Mediator’s role is to help the Participants in Mediation to escape this ‘dilemma’, by creating an environment in which trust and the benefits of cooperation are clear, i.e. self-evident, making a mutually acceptable agreement more likely.

By applying Game Theory Principles, Mediators and Mediation Advocates can help ‘reframe’ a dispute from being a ‘zero-sum’ battle, into a transformative ‘collaborative problem-solving exercise’, by guiding self-interested parties toward a mutually beneficial resolution.

I am available to be appointed as a Mediator or Mediation Advocate from 1st March. To enquire about my services please contact clerks@1ec.co.uk.

For a detailed discussion of both Mediation and Mediation Advocacy, see my recent book published by the Law Society, the 2nd Edition of the Contentious Probate Handbook (2025), which is available to purchase on Amazon.

I will also discuss Game Theory Principles in my forthcoming book – ‘Mediation of Cultural Heritage Disputes,’ including how a Mediator can help Participants to identify the ‘Nash Equilibrium’ in the context of their ‘Best Alternative to a Negotiated Agreement’ (BATNA), by showing them that continued confrontation/litigation is unlikely to yield a better result than a proposed settlement.