Decision-Aiding Software and Alternative Dispute Resolution
LINDA M. V. LISK
If the plaintiff in a civil case demands $100,000 and the defendant is only offering a $10,000 settlement, how can each simultaneously get benefits exceeding their initial best expectations? If a prosecutor estimates that a five-year prison sentence is the maximum for a criminal case, and the defendant's best realistic outcome seems to be a one-year prison term, what result will guarantee that both the prosecutor and the defendant will realize more than their initial best estimates? 1 The answer lies in decision-aiding software and creative lawyering. Attorneys can utilize certain microcomputer software, such as Policy/Goal Percentaging (P/G%), 2 to enhance negotiations so that seemingly impossible optimizing solutions can be determined and evaluated with greater ease. Answers to the above questions and others concerning decision-aiding software, including legal and ethical considerations, will be explored in this chapter. Also, an actual case will be used to explain and evaluate the P/G% program.
The P/G% program is an expert system, meaning that the instructions the computer executes are substantially the same as the thought process or decision-making process of a human expert in the field. 3 Therefore, an understanding of this thought process is necessary in evaluating the software.
The overall goal envisioned for use of this software is aiding in creating super optimum or win-plus solutions as opposed to win-loss or win-win approaches. Litigation outcomes are generally perceived as being win-loss situations, where for one party to gain the other party must give up something. A traditional negotiating approach is to compromise or split the difference between the plaintiff's and defendant's expectations. This solution, although sometimes referred to as win-win or pareto-optimum, 4 actually only ensures that each side gets