I recently came across a 2019 book about poker that has given me new insights into how I can help parties make good decisions in mediation. Given that poker is, by definition a fast-paced win-lose game, can a professional poker player teach new tricks about negotiation to an experienced mediator ? When the player has advanced degrees in psychology and has won over $4 million at world class poker championships, absolutely. Thinking in Bets, by Annie Duke, Portfolio/Penguin, 2019), provides both the underlying scientific research and practical techniques supporting making decisions when time is short and stakes are high, like whether to hold, raise or fold, or, for parties in a mediation, whether to accept, reject and/or counter-offer. Although Annie Duke, left a psych doctoral program at the University of Pennsylvania to pursue tournament poker, she never left her academic interest in human decision making.
Sprinkled with relevant anecdotes from sports, business as well as tournament poker, the author explains how game theory, behavioral psychology and neuroscience inform good decision-making. Tournament level poker players, through years of practice, win more than they lose. How? Avoiding poor decisions by minimizing the implicit biases based on fear, optimism and magical thinking called luck.
The author describes a number of mental constructs she refers to as “time travel” to improve decision making, whether in poker or in life. Here are a few of those that struck me as applicable to the mediation table as well as the gaming table.
1. The real or imagined peer group.
The author considers how she would explain to a peer group after a game why she didn’t fold given the cards in your hand. A decision to stay in the game, or even raise, on a hunch or feeling when the cards showing didn’t justify it would not get the respect of peer professional players. Imagining a future loss of respect of others, or even of yourself in the future, may be just enough to overcome the desire to depart from a rational process.
- Temporal discounting.
Annie Duke explains our “tendency ...to favor our present-self at the expense of our future-self” (p.181). This commonly arises when making decisions about whether and how much of current income one should invest in retirement funds. Picturing yourself In the future as 85 years old relying solely on the income from an IRA may be a reality check on succumbing to the lure of a new BMW.
In a mediation sometimes a party has to choose between cash and delayed payment, whether by a promissory note or an annuity payable over a lifetime. By encouraging a party to do a current value analysis, a confused party feeling under pressure to decide, can “time travel” to the future, and take a more rational view.
- Moving regret forward.
If regret can be felt prior to the decision, “it might lead us to change a choice likely to result in a bad outcome” (p.187). By the author’s sticking to a pre-determined loss limit prior to a session, she would never have to show remorse to her future self or explain to her peer group why she decided to exceed her loss limit.
In a mediation, similarly, parties might be encouraged to keep in front of them their BATNA, WATNA and MLATNA (best, worst and most likely alternatives) as they consider how to react to a “final" offer.
- The 10-10-10 rule.
When deciding among different options, this rule suggests that each potential option be tested by the question “What are the consequences of each of my options in ten minutes? In ten months? In ten years?”(P.188).
According to Ms. Duke, “Recruiting past-us and future-us in this way activates the neural pathways that engage the prefrontal cortex, inhibiting emotional mind and keeping events in more rational perspective“(P. 191).
Just as a rambunctious pinball player can cause the game to end when the machine is shaken too severely, our brain’s amygdala will shut down the prefrontal cortex at times of emotional overload, effectively preventing rational decision making. Knowing through past time travel how you are likely to react when your buttons are pushed, suggests the value of an agreement with yourself to call for a pause in the negotiation when the reactive feeling arises.
- The Ulysses Contract
Ulysses, knowing in advance that he would likely succumb to the Sirens’ song as his ship sailed past the treacherous shoals, had his men bind him to the mast and seal his ears to avoid the expected temptation. Ulysses protected his current decision-making by relying on past experience to channel current behavior. As The author explains, it has the effect of, “raising a barrier against irrationality” (p.201).
Similarly, in a mediation parties sometimes hesitate to consider changing a settlement proposal even when the uncertainty about the facts or law should rationally cast doubt on the relative strength of their position. One way a mediator might use future “time travel” to move them to reconsider the realities of their position, is by asking them whether they can imagine a, perhaps, to them “improbable”, scenario where the judge (or arbitrator),fails to understand what in their view, “really” happened. If they can imagine that, would they wish their future selves could then go back in time and settle for a lesser amount? Now is their chance.
- Backcasting and Premortems
These two concepts are interrelated, but use different starting points to evaluate a decision. Both concepts imagine the potential results of a decision, either imagining a positive result (backcasting), or a negative result (premortems). Both use the same technique of looking at all the different things that, from the future looking backwards, went right or went wrong following the decision. To settle a case rather than take it to trial, for example, a backcasting lawyer would assume a positive end result and then examine all the various factors (important evidence was admitted, operative facts were believed by the judge or jury, the judge agreed with the cases he cited were on point and controlling, etc.), that led to a favorable decision. The lawyer doing a premortem, on the other hand, would imagine the case being lost and then looking at each of the elements that caused that result. These techniques allow the decision-maker to "visualize and anticipate future obstacles” (p. 225)
The above are only a few of the author’s remarkable insights that can assist a party in preparing or responding to proposals whether directly between parties or in the context of a mediation. The poker analogy isn’t perfect. Poker is a zero sum game, and the last two players still in the game don’t have the option of negotiating a sharing of the pot. Nevertheless, whether win-win or win-lose, parties want to avoid losses and/or maximize their own return, which in mediation is often reached through making sure the opposition also has a positive result. Annie Duke’s techniques are as applicable in that scenario as in a poker game.