One of the panel presentations at last week’s ABA ADR Conference in Seattle led me to wonder whether attorneys perceive mediation negotiations, especially in joint sessions, as a type of "Prisoners' Dilemma".

You may recall the setup for this classic example of game theory. Two co-conspirators (A and B) are arrested and held in separate cells with no means of contacting the other. The prosecutors do not have sufficient evidence to convict the two on the principal charge, so they offer each prisoner a deal: Betray the other in exchange for a lesser sentence.

• If A and B both remain silent, they will each serve 1 year in prison on a lesser charge.
  
• If A and B betray each other, each of them will serve 2 years in prison 
  
• If A betrays B, but B remains silent, A will be set free while B will serve 3 years (and vice a versa) 

As such, the best available outcome (freedom) can only be achieved if one betrays the other, and only if the other does not do the same. Because this is true for both parties, the most likely outcome is that they will betray each other, resulting in a 2-year sentence for each. The best mutual outcome (a 1-year sentence) is achieved if the parties cooperate with each other and both remain silent.

It is no secret that most mediators are proponents of joint session work, while the majority of litigation attorneys are not. When the initial framework within which attorneys and parties approach negotiations in mediation is mistrust, it may seem more effective to remain in separate rooms, be aggressive, posture and make few or no concessions than to trust your negotiating partner by revealing underlying interests or making a gesture of good will in the hope that the other side reciprocates. This turns mediation into a zero-sum game – one side can win only if the other side loses. 

However, if the mediator uses joint sessions wisely, and properly prepares the parties, there is a high potential for a productive and beneficial exchange of information. The joint session can eliminate the specter of the nameless faceless "other" who can be blamed and vilified. Parties have the opportunity to speak to each other directly across the table, discovering interests that can often be addressed without giving up much or anything of substantive value. If nothing else, this lays a solid foundation for negotiations.

Indeed, mediation practitioners report that over-performance (i.e., making more generous offers than are expected by the other side) is generally reciprocated. In this, mediation is very different from the “Prisoners’ Dilemma”, because there is an opportunity for direct communication. If the parties enter the mediation willing to listen to each other and – at least initially – give each other the benefit of the doubt, they may find that they can achieve more of their goals by working together than each of them could achieve individually.

A couple of days ago, I followed a link on Facebook to a New York Times piece titled "The Importance of Naming Your Emotions", which brought to mind a seemingly minor interaction that occurred many years ago, but has stuck with me.

At the time, I was a relatively new associate at the small law firm in Seattle where I spent the majority of my litigation career. Around mid-day, I ran into one of the more senior attorneys in the file room, and noticed that he looked very tired. "How are you?", I asked.

Now, I must digress briefly to point out that I spent the first 17 years of my life in Germany, where "how are you?" was not used as a cursory greeting to be met with a rote response of "fine". So I was rather taken aback when this attorney - with whom I had an excellent working relationship - looked me straight in the eye and said something along the lines of "you are not really interested in how I am doing". I was not sure how to respond, so I did not pursue the question further at the time. (I did learn later that he was exhausted, overwhelmed and frustrated for a variety of reasons.)

The NYT piece makes the point that "We can't change what we don't notice. Denying or avoiding feelings doesn't make them go away, nor does it lessen their impact on us, even if it's unconscious. Noticing and naming emotions gives us the chance to take a step back and make choices about what to do with them."

The legal profession is not exactly "touchy-feely", and the majority of attorneys I know are even less comfortable around emotion than most non-attorneys. We tend to be linear thinkers, problem-solvers, and Type A personalities. We excel at dealing in cold hard facts.

But humans and human interactions are messy. They are rarely fact-based, but instead are driven by feelings and emotions. Being able to notice those emotions - in ourselves, our family members, our co-workers, our clients, and even in those we perceive to be our adversaries - and allowing them to be named is ultimately the only effective way to deal with them and get to the facts.

As a mediator, I frequently ask my clients how they are feeling. Giving them permission to talk about their feelings, and assuring them that I am listening, can be one of the most effective ways to allow them to move past their emotions and into productive negotiations.

This is not to say that we should wear our emotions on our sleeves at all times. There is, of course, a time and a place to deal with them. What is important is to create such a time and place, so that our unexpressed feelings do not have a negative impact on our work and our lives.