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<xTITLE>The Nash Equilibrium In Real Life</xTITLE>

The Nash Equilibrium In Real Life

by Phyllis Pollack
April 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Last week, my blog discussed the Nash equilibrium which states that “. . .in every situation of competition or conflict in which the parties are unwilling or unable to communicate”  “. . . both sides have selected a strategy. . . [which] neither side can then independently change. . .  without ending up in a less desirable position.” Fisher, Len, Rock, Paper, Scissors: Game Theory in Everyday Life (Basic Books 2008) at p. 18. (Emphasis original.)

       This week, I conducted two mediations in which I witnessed the consequences of this game theory. More importantly, both mediations showed me the importance of communicating with the other side prior to the mediation so that the mediation process is more effective.

       The first was a business dispute. Plaintiff was suing to collect a referral fee based on what it believed had been a referral of close to 3,000 clients to the defendant. The alleged agreement provided for a $10 referral fee for each client to be paid on a monthly basis for so long as the defendant retained the client. In calculating its damages, plaintiff assumed that for the last 3 plus years, defendant had retained these clients. It, thus, calculated its damages to be more than a million dollars.

       Evidently, the parties had not conducted discovery, and the defendant had not shared any sort of accounting records with the plaintiff prior to the mediation. During the mediation, I asked the defendant how many clients were still using defendant, only to learn that over the last three years, defendant lost more than 75% of these clients. Thus, the actual alleged damages were, in reality, far less than $100,000 ( much less the more than the over one million dollars sought by Plaintiff.)  With defendant’s permission, I shared this information with plaintiff but to no avail. Plaintiff was in disbelief and refused to discuss settlement in the amounts being offered by defendant. At this point, the “equilibrium”  was obtained: neither plaintiff nor defendant  could keep going their separate ways without escaping further loss. They must now cooperate with each by sharing accounting records to determine the best solution possible under the circumstances.

       The second mediation met the same fate: it did not settle because, like the first, it reached the “equilibrium” during the mediation. This matter was a “lemon law” case or one brought under California’s Song-Beverly Consumer Warranty Act (California Civil Code §1790 et seq) and the Federal Maguson-Moss Warranty Act (15 U.S.C. §2301 et seq).  Defendant was of the view that plaintiff’s vehicle did not qualify under California law, and the federal statute had only limited applicability to the situation. However, counsel chose not to share this view with plaintiff’s counsel until the mediation. Needless to say, when defense counsel explained her client’s position for the first time at the mediation, plaintiff’s counsel (and plaintiff) became quite upset. While both parties did continue to negotiate in hopes of resolving the matter, it was clear that  this issue was the sticking point because if defense counsel was correct, plaintiff did not have much of a case, but if plaintiff was correct, plaintiff believed the vehicle to be a strong candidate for repurchase.

       Again, the “equilibrium” was obtained. Neither side could continue with its independent strategy without being worse off.  Each must now cooperate with the other to find a solution that provides the best solution possible to their respective clients under the circumstances.

       In both instances, I believe that if the critical information had been shared prior to the mediation, the Nash equilibrium could have been successfully handled during and as part of the mediation process.

       In short, given the Nash equilibrium, it is difficult to switch from a competitive to a cooperative strategy during a mediation with any degree of success. Like everything in life, strategy “shifts” need to percolate for a bit to become effective. If a tectonic shift in strategy is in the winds, it should be implemented  prior to the mediation so that the Nash equilibrium does not thwart reaching a resolution during the mediation

       . . . Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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