Do you play a Zero Sum Game?

One of the things I dislike most about the adversarial nature of most legal interactions is that people’s real interests – the thing they most want to get out of the situation – is very rarely on the table for discussion. In fact, even the parties to the dispute may not fully understand what they are trying to achieve – and more importantly – why.

Conflict is natural and normal

Conflict is a fact of life. It arises wherever two or more people have seemingly incompatible needs or are in competition for limited resources. It is the friction that can result from people with diverse values and visions rubbing together. It is the end result of upset, hurt feelings, unmet desires or differences of opinion. It is not only inevitable, it is natural and normal. How we handle conflict, however, is what makes all the difference in terms of how much disruption it causes in our lives. (Note: I am drawing a line here between conflict, which need not be damaging, depending on how we respond to it, and bullying, which is always harmful.)

For the longest time, I believed that I couldn’t handle conflict. Arguments would send me into fight or flight mode. I would panic if I had to communicate with someone who was very positional. That situation has changed – and one of the biggest catalysts for me was learning about the zero-sum game in my mediation training, which is why I want to share this with you.

Dividing the Pie – Distributive Bargaining

The majority of legal negotiations – including litigation – involve what is known as distributive bargaining or “dividing the pie”. This starts from an assumption that there is a finite amount of a particular resource that two people want (or don’t want) – an amount of money, their children’s time, liability for a mistake, the value of property. It’s a win-lose situation.

Take money, for example. If there is a pool of it sitting on the table, every dollar I win is one less dollar for you. We could agree to divide it as equitably as possible, but our ultimate aim is for there to be nothing left on the table.

Other considerations just don’t come into it – why we need the money, how we feel about each other and the situation that brought us into conflict over it – these things will affect how hard we fight, how positional we are, how much we try to take, but they will remain as undercurrents. They are not seen as particularly relevant to the only issue that matters, which is “who gets more of the pie”?

The Win-Win Alternative – Integrative Bargaining

The alternative is known as integrative bargaining. This is the approach most often used in mediation and non-adversarial dispute resolution. It starts out by acknowledging that the situation is much more complex than the black and white view of distributive bargaining. Instead of focusing on who gets more pie, it asks why do you want it? What else would satisfy your need? Is the pie the real problem? Let’s shift this into the context of entrepreneurs and small business.

Say you have purchased an expensive online course delivered through video modules and workbooks. You are a bit worried about whether this course will suit your needs, so you reach out to the seller in advance and tell them what  you do and how you intend to use what you learn. They reassure you that it is perfect for you, so you pay up. The terms & conditions state that you need to claim under their refund policy during the course, and once the course is ended no further refunds will be offered. Sounds perfectly reasonable. During the first part of the course, your concerns get stronger, so you reach out and again are told that it will all be fine, so you stick with it. You do all the exercises diligently even though you can’t see how this applies to your business. You keep telling yourself that the next module will be the one that brings it all together for you, then the next… and suddenly the course is over. You sit for a few days thinking over the experience and you start to get a bit upset. You didn’t receive what you were promised, as far as you are concerned. You contact the seller and they tell you the refund period has expired and you are out of luck… Now you are getting angry and so are they.

You are heading into a zero sum game – “I want all my money back”… “You can’t have any of your money back”… You get legal advice and start talking about consumer law and fitness for purpose… Your negotiations continue… they shift their position a little and offer you a partial refund to make you go away, but you both feel like you have lost.

What changes if you take a win-win approach instead? First, you spend some time getting really clear om your interests. You want your money back, sure. What else could satisfy you in this situation? An apology and acknowledgement of your feelings? Another course more suited to your needs? A one-on-one session with them that shows you how to adapt the course you purchased to your specific business? A discount off other resources? Options are unlimited. You can brainstorm as many as you like, and they can be as silly and unrealistic as you like… a grovelling apology and a lifetime’s supply of free 1:1 coaching? What would it take for you to feel like you have had a “woohoo” win? Now, step into their shoes. What are their feelings and interests likely to be? Protecting their reputation is likely to be a big one. They probably had plans for that money. It may even be already spent. Pride and resentment. They delivered the course as promised, it’s not their fault, it’s just you, rocking the boat. Fear of the matter escalating if they ignore you. What would it take for them to feel like they have won? Keeping your money. You going away and not messing with their calm anymore… how about keeping you as a valued client? How about being able to transform this messy experience into something positive that serves their calling?

Now think about those two perspectives. Sure, there are zones where you are both worlds apart, dividing the pie, but there is also a very special zone there – the zone of potential agreement. That’s the zone where you still desire to learn from them and they still desire to retain you as a customer. Suddenly the conversation is no longer about the money (or the pie)… it is about value and needs… and in that zone of talking about what you both value and what you each need, THAT is where miracles can happen and conflict can dissolve.

How I can help…

If you are looking for an adversarial lawyer to represent you in a distributive bargaining situation, you are most likely miles away by now… but if you have a conflict and need someone to help you brainstorm your options, or write a conciliatory letter that focuses on interests rather than positions, I am the lawyer for you! As an accredited mediator, I can also help you talk face to face (or online using zoom) about how you each feel and what you need, and help you explore options for a win/win solution. You can also read more about my approach to mediation.