In hundreds of mediations happening every day throughout the country, people are playing games. As negotiators, it is important to understand that although negotiations can be legal proceedings, some of the strategies and tactics related to those negotiations can be learned through games. There are at least four games which demonstrate the intricate process that occurs during a mediation. Those games are: chess, poker, pingpong and “Deal or No Deal.” Understanding how those games apply to negotiations and mediations can help negotiators get better results. Indeed, as Albert Einstein once wrote, “you have to learn the rules of the game. And then you have to play better than anyone else.”

Chess is a game of strategy. It requires players to think ahead several moves and evaluate the options and risks of each move. Just as with chess, good negotiators have to look at all of their options before they make a move and consider how the other side will react to a particular move. Thinking like a chess player helps the parties to understand their BATNA (best alternative to a negotiated agreement) and WATNA (worst alternative to a negotiated agreement) by seriously evaluating the likelihoods of winning and losing: If an offer is made, how will the other side counter? What will be the next move in response to the counter proposal? After one hypothetical chain is considered, a negotiator might have to evaluate other viable moves. The negotiator has to be a chess master and think several moves ahead and plan for all contingencies to be successful.

Poker requires skill, luck and the ability to bluff. Players make decisions based on limited information. A player only knows what he or she is holding and what has been revealed to all players. Just as in poker, negotiators are gambling on the outcome. Parties often know facts that are only available to one side. For example, one side may be privy to what a certain witness might say, or the availability of certain evidence. And so the parties ante up by making preliminary bets based upon that limited information: Do they want to settle or continue? Then the parties see “the flop” as more information is discovered. Parties then can adjust their bets: Do they want to invest more in the case or do they want to fold and get out of the litigation process? However, even after seeing “the river” — that is, the final bit of information a party is able to discover — the parties still don’t know for sure the other side’s position. And so in negotiations, as in poker, parties must rely on their instincts and be willing to read the other side’s intentions through nonverbal cues.

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