In personal injury mediation, negotiation quickly becomes all about distributive bargaining: how much is one party willing to give and the other party willing to take, methodically approached by incremental tit-for-tat offers. Each party always keeping a keen eye on their bottom line throughout the process. But is this the best way to maximize value and achieve a successful settlement resolution?
The Prisoner’s Dilemma is a paradigm for situations in which neither party wants to cooperate, yet both parties would benefit if they did. The classic illustration, seen countless times on TV cop shows, goes like this: two partners in crime are arrested and put into separate interrogation rooms. The Prosecutor offers them both a deal: the first one to confess and testify against their partner will go free while their partner gets a life sentence. If neither of them confesses against the other, they will both get one year on a lessor charge. If they both confess, they will both get ten years. The following illustration shows the choices and their possible consequences:
Take a minute and think about what you would do. Would you confess or keep quiet? If you analyze your options, you quickly realize that the only way to avoid being exploited by your partner, and possibly serving a life sentence, is by confessing. Only by being competitive do you stand a chance at going free (if your partner keeps quiet) but at the risk of a ten-year sentence if your partner confesses, too. Is this your best option? What if you could talk to your partner and cooperate in a strategy before giving the Prosecutor your answer? Would that make a difference? If you both honored your cooperative agreement, you’d both likely keep quiet and only serve one year.
What lesson can we take away from The Prisoner’s Dilemma and apply to personal injury mediation? Look for opportunities to shift the negotiation paradigm from a competitive, distributive bargaining model to one of cooperation and integrative bargaining. How do you do this?
The Prisoner’s Dilemma