Beyond Checkmate: Lessons From Chess in the Art of Mediation

Checkmate! I am sure that was my mindset when I was in private practice and wanted to win a case for my client. I wanted to achieve checkmate, to trap the opposing party so they had no legal move that would enable them to prevail, whether through motions practice or trial. Even as a litigator, though, I approached mediation differently. I never viewed mediation as the place to win the case by obtaining a result completely in my client’s favor; it was an opportunity to obtain a win in a different sense. It was my chance to explore how I could bring closure to a claim. Now, as a mediator, I fully appreciate that mediation is the complete opposite of checkmate. Rather than trying to convince the other side they have no safe space to move to, I try to show the parties the different moves they could still safely make and achieve probably not all of what they want, but enough of what they need. 

The Chessboard and the Courtroom

Being in litigation often feels like playing chess. You are facing an opponent and trying to take down each of their claims, like pawns, one by one. However, there are different piece values for each chess piece, and the goal is to remove the most highly valued pieces. Interestingly, the queen is worth the most points—nine—while the king is considered not to have a point value. In the chess world, there is a play known as removing the defender, which occurs when a player removes a defender of a square and allows for the capture of that square and gains a material advantage in doing so. In the litigation sphere, this might be the equivalent of agreeing not to call a certain expert, analogous to sacrificing a rook (five points, for those of you keeping score).

Strategy, Foresight and Adaptability

When playing chess, you have to envision several moves ahead, just as in litigation, and you need to constantly reevaluate your strategy, depending on the moves the other side makes. To me, one of the wonderful differences in mediating a case as a mediator rather than as a litigator is that I feel as if I am playing three-dimensional chess. I have the advantage of seeing how each of the players is strategizing their moves. I am not just seeing one board at a time. With this unique vantage point, I can help the parties and their counsel consider their next moves and what may happen if they lose a valuable piece; i.e., what if the judge rules a certain way on a key motion, or what if the jury does not find a particular witness credible?

Finding Rhythm and Tempo in Mediation

Once I started using this metaphor, I realized that there are quite a few parallels between chess and mediation. For example, as in chess, there is a certain rhythm to a mediation—what is known as tempo in chess. There is the opening, when the parties are beginning to develop their theories and strategies (opening demands/offers); the middlegame, when most claims and defenses have been developed and both sides prepare and execute attacks (substantive discussions about the facts leading to the litigation); and the endgame, when parties must decide how (or if) they will end the game (will settlement be achieved?). Just as in chess, sometimes one party loses tempo (think about a situation where one party is not prepared with an offer or demand or does not have a satisfactory response to an issue that has been raised). In chess, a player can distract by forcing a party to make a certain move or sacrifice to divert the attention of a piece. Many times, issues come up in a mediation that all counsel know most likely will not be permitted by the court, but they are still discussed at length during the mediation or are used as bargaining chips. There is the concept of prophylaxis in chess, where a player sees the threat an opponent is trying to make but prevents it from happening. In the context of mediation, with its confidentiality provisions, one party may concede—only for purposes of mediation—a certain point or issue, thereby depriving the opponent of a particular argument.

From Victory to Mutual Resolution

The ultimate goal for me as a mediator is either to help the parties understand that they should agree to a draw by insufficient material—when neither player has enough material to win, or at least appreciates the risk of not having enough material—or a draw by agreement—when both players agree to end the game in a draw. Winning a chess game ends in victory for only one party; mediation should feel like a win to each participant.

Karen Bamberger, Esq., is a mediator and arbitrator with JAMS with more than 35 years of litigation experience. She has served as lead counsel in a broad range of matters, including personal injury, product liability, employment and civil rights, and has tried both jury and bench trials in state and federal courts.