We have all encountered the spiteful litigant. Maybe it’s the husband in a divorce who says that he is going to Las Vegas and putting the marital estate on red or black at the roulette wheel. If he wins he will split it with his ex; if he loses, neither of them get anything. Or perhaps it’s a partner in a dispute that says that he would rather the business fail then have to share its value with his soon to be ex-partner; or a litigant that states that he would rather drive the defendant into bankruptcy even if it means that he would not recover for his injuries.

How does one deal with spite in the context of a mediation? Recent scientific studies of spite provide the answer. Spite is defined as the urge to punish, hurt or humiliate another, even when one gains no obvious benefit and may well pay the cost. New research summarized in a recent New York Times article concludes that spite is both a vice and a virtue that may be linked. Not surprisingly, in one survey conducted by David K. Marcus, a psychologist at Washington State University, spitefulness generally cohabited with traits like callousness, Machiavellianism and poor self-esteem.  Spite is not associated with agreeableness, conscientiousness or guilt.

But according to the Times, another report suggests that spite may make right. Using game theory and a computer model with virtual players, scientists at Tufts University tackled the game of Ultimatum. In the game, person A decides a percentage of a pot to split, but person B must agree to the percentage. The players were given pre-determined strategies from fair to stingy and the players then gathered into mock societies. These scientists concluded that flexible sharers were not only able to coexist with the stingy spitefuls, but that the presence of the spitefuls had the effect of increasing the rate of fair exchanges among the sharers.  The stingy spitefuls were just as interested as the flexible sharers in getting rid of their competitor.  The only way to accomplish this goal was to engage in a fairer allocation of the pot.  In other words, fairness acted as a defense against spite.

So what do these new studies teach us about dealing with the spiteful litigant? We must appeal to fairness, acknowledging the feeling and drawing it out. Perhaps pointing out that these same spiteful feelings are shared in the other caucus room. Ultimately, we must ask the spiteful litigant what they would regard as a fair resolution. We must point out the obvious that both parties must agree in order for there to be a settlement.  In other words, we can use the game of Ultimatum—nobody gets anything unless all sides agree—as the antidote to the spiteful litigant and his less than rational negotiating position.