Mediation Game – Conflict Management in Action

A mediation game is how a participant in a mediation understands and strategizes during mediation to walk away with a desirable outcome.  This includes understanding the basics of mediation, the different types of mediation, and the training that a mediation participant has had.  In some cases, mediation training can also include actual mediation games played to help the participants learn strategy and skills.  Mediation game also includes game theory and how that theory controls and interacts with the law in mediation.  This article will look at the standard characteristics of mediation and the types of mediation.  Then this article will then turn to game theory and discuss how a participant may use game theory to their advantage in a mediation.  This article will also examine games created to help train mediation participants.  It will also discuss the “games” played by the parties in mediation can affect the outcome.

Mediation Defined

Before discussing how games can be a useful tool for mediation, it is important to understand the common characteristics of mediation. Mediation is a conflict or dispute resolution process that involves a neutral mediator that works with the parties to come up with a solution that the parties can agree to.  Mediation is occasionally a step in a dispute resolution process that must take place before the parties can arbitrate. Other times, the parties will agree to mediate to avoid litigation and settle the dispute.  Some common characteristics of mediation are:

  • Voluntary: Mediation is typically voluntary, meaning that the parties need to agree before mediation can begin.  However, this is not enforced as strongly as in arbitration because mediation allows the parties the ability to agree rather than assigning blame or fault.  Courts will occasionally require cases under a certain amount to attempt a settlement under mediation.
  • Nonbinding: Mediation is not binding unless the parties agree.  In arbitration and litigation, and outside decisionmaker creates a binding decision that the parties have to follow.  In mediation, the parties are attempting to agree, but if they cannot agree, the case will move forward to either arbitration or litigation.
  • Party-Driven: Similar to the point above, the parties in a mediation hold the power in the mediation.  A mediator cannot force the parties into an agreement.  Depending on the style, a mediator may not even share their thoughts about the parties’ position.  The mediator is not a decisionmaker and is merely present to help facilitate a fruitful settlement discussion.
  • Neutral: The mediator is a neutral third-party.  They are not on one party’s side, and they will usually move between the parties and encourage the parties to consider ideas and suggestions that may help the parties agree.
  • Collaborative: While the collaborative type of mediation will be discussed in the next section, it is important to note that most mediations will be collaborative to some degree to help the parties reach an agreement that they can move forward with.
  • Confidential: Mediation is confidential.  This means that anything said to the mediator in confidence or between the parties will only be shared with the parties to whom it was revealed.  This allows the parties to speak freely to the mediator and share things that are influencing their decisions without fear that they will be shared without permission.

This not an exhaustive list and other characteristics may be helpful to consider when developing a strategy. However, these characteristics seem to be consistent between mediators and mediators and it provides a place for beginners to learn.

Types of Mediation

Besides understanding the basic characteristic of mediation, it is also important to gauge the style of mediation that a mediator is using to best apply the tools to the mediation and come away with a desirable outcome. Each mediator will have a preferred method for running an arbitration, but they will also adapt their style to meet the needs of the specific mediation.  Understanding how a mediator is running the mediation will help form the appropriate reactions to the type of mediation.  The types of mediation include:

  • Transformative: Transformative mediation focuses on empowerment and helping the parties transform the dispute into an agreement that can shape their relationship in the future.  It focuses heavily on getting the parties to recognize the interests, needs, values, and stories of the other party, which can change the way that the parties view the dispute.  Transformative mediation often takes place with the parties all in one room to allow the parties to hear and recognize the other.  In this type, the parties control the outcome and the process of the mediation.
  • Facilitative: Facilitative mediation finds itself somewhere between transformative and evaluative mediation.  Facilitative mediation relies heavily on the mediator to create the structure or the process of the mediation to help the parties create a mutually agreeable outcome.  This type of mediation allows the mediator to ask questions and encourage the parties to share their needs and interests.  The mediator will often move the parties back and forth between joint conferences and separate caucuses with the parties.  The parties have total control over the outcome of the mediation.
  • Evaluative: Evaluative mediation is the least cooperative mediation style of the types.  In evaluative mediation, the mediator may present their impressions of the strengths and weaknesses of the case and predict what a judge or jury may do.  Evaluative mediators view this as a way for the parties to be fully aware of the weaknesses of their case and see the benefits of the agreement presented by the mediator.  This type will focus greatly on the legal rights of the parties rather than what they need or want.  While the parties are still free to create and sign a mediation agreement, the mediator has some sway in the outcome of the mediation.  The mediator also controls the process.
  • Narrative: Narrative mediation focuses on the stories that the parties tell themselves and each other.  It also focuses on the relationships between the parties first and the substantive issues second.  It creates a space for the parties to evaluate their relationship with the other party separately from the dispute at hand.  This is the newest of the approaches mentioned in the article, and it is gaining some recognition but is not as popular as the other three options.

Game Theory and Its Connection to Mediation

Game theory is a way of studying two people who are interacting competitively.  The game theory sees that there are rational, standard ways to approach conflict and irrational ways to approach conflict.  The most common game theory applied to mediation is the distinction between zero-sum games and non-zero-sum games.  Zero-sum games are those in which one party wins at the other’s expense.  The parties’ interests run counter to each other.  Non-zero-sum games are those which allow both parties to win or both parties to lose and where the positions of the parties do not run counter to each other.

Game theory comes into play in mediation situations when the parties rely on their perceptions of their positions and the other parties.  Each party will come in with an expectation of how the other party will respond and will act accordingly.  Mediation can result in a zero-sum game if the parties are fighting only for one party to gain more while the other loses.  However, non-zero-sum games can also happen in mediation when the parties begin to anticipate the other party’s moves and see that the parties may be able to achieve a great result for both parties if they can work together.

Using Games to Train

When students and practitioners are learning about mediation theory and practice, they often play games or move through simulations of mediation.  These games help students to learn skills to further their mediation practice or to learn how to best serve clients as an attorney in a mediation.  Some of these games include:

  • Win the Most: There is a common exercise that mediation professors will often use with students to teach negotiation and collaboration techniques.  The goal of the game is to win as much as you can, but there are twists that require players to collaborate with other players to truly win the most.  Once the players figure out that they need to work together to win more, they can negotiate and collaborate with other players to help everyone win.
  • Simulations: Simulations teach mediators how to respond in certain situations.  These often involve a story about an issue that needs to be mediated and the participants will play the parties and the mediator and attempt to resolve the dispute.  Facilitators will often add special instructions for the parties to make the mediation more difficult, such as a strong underlying interest that a party refuses to talk about or a cold shoulder to the other party.  Students learn a large variety of skills and problem solving from these simulations.

Practicing skills and theories of mediation is incredibly helpful for those new to mediation or a particular skill.  These games and others that people can use to master skills will only help create more skilled mediators and participants and will make mediations more successful in the long run.

Games Parties Use to Drive Mediation

Parties will often use certain “games” or strategies to drive a mediation toward their goal.  These games, used at the right moment, can be a deciding factor and a skill to create a possibility for an agreement that favors the party using the strategy.  These games include:

  • Moving in Inches: Parties that are frustrated by an offer or who may have moved closer to their final offer faster than the other may begin to move in very small increments.  This may work or may make the other party start to move slow as well.
  • Matching: When one party moves the exact same amount as the other party, this is called matching.  This can be a sign that mediation is already falling apart and that one party is irritated.  This should usually be avoided until the parties are closer to a meet-in-the-middle agreement.
  • Intentional Impasse: An impasse is when one or both parties are unwilling to move any more toward each other.  Occasionally, a party may intentionally create an impasse by being unwilling to negotiate or move on their offer.  This can occasionally for the other party to move faster if they believe a settlement would be better than a trial, but it also takes away from the spirit of mediation and collaboration.

Conclusion

Games can be an important part of mediation and influence how a party reacts to the other party’s offers or the mediation as a whole.  Games can give the parties a strategy to use when going into mediation or one can create their own mediation game to take with them and use as their strategy.  Games can also be used to train participants in new mediation and negotiation skills.  Game theory provides an alternative way to consider the movements and creation of expectations in mediations and can be an important tool for mediators to use to see where the parties are having trouble based on their reactions to the other party.  Using games and game theory can help a mediation participant to develop their own mediation game and go into a mediation feeling confident in their ability to participate.

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