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Bets are Off: Should Mediators and Negotiators Learn Lessons From Poker Players?
from "Online
Guide to Mediation" by Diane
Levin
Here's a follow up to last
week's post about the American Bar Association ethics opinion distinguishing
between "puffing" on the one hand and "false statements of
material fact" on the other in caucused mediations, and which bestowed its
blessing upon the former but not the latter.
This
week's edition of Blawg Review links to a post on the Psychology
of Compliance & Due Diligence Law blog about a new book for the legal
profession, Lawyers'
Poker : 52 Lessons that Lawyers Can Learn from Card Players.
Consider this from the book’s description on Amazon.com
(and negotiators, be sure to note the zero-sum imagery):
Great poker
players are master tacticians. Not only do they calculate odds with lightning
speed and astonishing precision, but they also cunningly anticipate and
manipulate the actions of their adversaries. In short, they boast skills that
every lawyer can envy. This highly entertaining work might best be summed up
as "better lawyering through poker." Steven Lubet shows exactly how
the tactics of the poker table can be adapted to litigation, negotiation, and
virtually every aspect of law practice. In a series of engaging and
informative lessons, Lubet describes concepts like "betting for
value," "slow playing," and "reverse bluffing," and
explains how they can be used by lawyers to win their cases. The best card
players, like the best lawyers, have a knack for getting their adversaries to
react exactly as they want, and that talent separates the winners from the
losers.
When I consider the preceding passage together with the recent ABA ethics
opinion, some questions for lawyers, negotiators, and mediators come readily to
mind.
Let me say first that as someone who enjoys a good card game (and in fact
married my husband in Las Vegas), I have nothing against poker, cards, gambling,
winning, losing, or even using those analogies in describing litigation tactics
or outcomes. In fact, gambling metaphors lend themselves very nicely to
depicting the risks inherent in litigation--it's the leverage that mediators use
when we urge parties to weigh
their alternatives.
But should we attorneys and negotiators rejoice to hear these metaphors applied
not only to litigation but "virtually every aspect of law practice"
including "negotiation"? Are we truly supposed to believe that skill
in "manipulating the actions of their adversaries" is a virtue that
"every lawyer can envy"?
More to the point, do we really want to be comparing ourselves to card sharks
and gamblers when public opinion of lawyers has never been so low? (Although,
ironically, just ask anyone what qualities they would wish for in the attorney
that represents them, and most people would answer emphatically that among those
qualities would be the ability to "cunningly anticipate and manipulate the
actions of their adversaries". But that’s a post for another time.)
As for mediators, if mediation is, as we like to say, "assisted
negotiation", is this the kind of negotiation we want to be assisting?
What does it do to public confidence in mediation if we allow parties to
"puff", bluff, and manipulate their way to settlement, even if it does
have the ABA's seal of approval? We still have a responsibility to the process,
to our profession, and to ourselves.
Otherwise, in the end, everyone loses. And is that a gamble mediators should be
willing to take?
About The Author
Diane Levin is a mediator, trainer, attorney and founder of Partnering
Solutions, LLC, a dispute resolution firm based in the Greater Boston
area. More articles of interest can be found at her mediation blog
"Online Guide to Mediation" at http://www.mediationblog.blogspot.com.
Disclaimer
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