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Rock, Paper, Scissors and Alternative Dispute Resolution

Recently, a federal judge in Orlando, Florida, brought national attention to the children’s game Rock Paper Scissors through Forbes magazine and CNNMoney.com. As of June 7, 2006, Fortune writer Roger Parloff describes two attorneys in a federal case who could not agree on a location for a deposition even though their offices were separated by four floors in the same building. . Instead of deciding the matter, Judge Presnell ordered each attorney to proceed to the steps of federal court on June 30, 2006, accompanied by a paralegal witness, to play a rock-paper-scissors operative round, with the winner to choose the location for the deposition provided it was in Hillsborough County, Florida. Apparently intimidated by the threat to play rock-paper-scissors, the World RPS Society (www.worldrps.com) reported June 9 that “the attorneys have resolved our differences by agreement. We will not have to resort to combat for RPS.” Since then, the judge has withdrawn his order.

The game “Rock Paper Scissors” can be thought of as an “arbitrary” way of making decisions. In Hindson v. Allstate Ins. Co., 694 A.2d 682, 685 (RI 1997) the court was faced with the allocation of coverage among several insurance companies where none would admit primary coverage. The court considered using a “rock-paper-scissors” approach to determine which companies should provide primary coverage for the claims in question, but found that approach “arbitrary.” In that case, the court chose to “stop the incessant ‘battle of the draftsmen’ waged by, between and between the various insurance companies” by finding that the coverage responsibilities of all insurers must be shared on a pro-rata basis.

Despite the Rhode Island court’s reluctance to use “rock-paper-scissors,” variations of “rock-paper-scissors” have been used for dispute resolution for more than 50,000 years, according to Wikipedia, the encyclopedia at free line. According to the Official Rock-Paper-Scissors Strategy Guide (available on Amazon.com), the earliest Homo sapiens played an earlier game around 50,000 BC. C. “to resolve food and mating disputes.” This game only involved a stone (scissors were not invented until the 6th century in Italy). The ‘pitcher’ tried to place his fist on the body of the ‘catcher’, while the ‘catcher’ tried to avoid it by placing his hand to catch the stone. After changing positions, the ‘pitcher’ who placed the most stones on the ‘catcher’ body won.

It seems that the Japanese invented the modern tripartite game they call Janken, based on Guu Choki Paa’s way of thinking: “The snake is afraid of the slug; the slug is afraid of the frog and the frog is afraid of the snake.” Moving away from snakes, slugs, and frogs, the Japanese developed a new version in which “the tiger feared the warrior, the warrior feared his mother, and the warrior’s mother feared the tiger.” Marco Polo reportedly brought this game back to Europe, and Venetian merchants changed it to stone, paper, sheet to resolve trade disputes. One of the funniest variations of the game comes from Indonesia and apparently involved an elephant, a person, and an ant. The elephant can crush the person, the person can crush the ant, but how can the ant beat the elephant? Crawls on the elephant’s ear and drives the elephant crazy.

The game may have migrated to the United States through Jean Baptiste. Jean Baptise was the French general who helped George Washington during the American Revolution. Why this game was associated with the Earl of Rochambeau is unknown, but it raises questions about the means by which Washington secured Cornwallis’s surrender at Yorktown. However, this theory may explain why the game is often called “rochambeau” or “roshambo”.

In any case, it is clear that Judge Presnell was not the first to use rock-paper-scissors to resolve trade disputes in modern times. The August 2005 newsletter published by the Institute for Conflict Management (http://www.icmneutrals.com/news.html) describes a 75-year-old Japanese businessman trying to choose between Christie’s and Sotheby’s to auction his $ 17.8 million art collection, for a commission of more than $ 2 million to the successful company. Believing that both companies were equal and not wanting to insult either, he said that the winner would be determined by a game of rock, paper, scissors. That way, the loser would be considered “unlucky”, not “unworthy.” Sotheby’s said “this is a game and we didn’t really think about it much. We didn’t have any strategy in mind.”

Christie’s representative spent her weekend before the challenge researching the psychology of the game and talking with friends. One had 11-year-old twins who offered the following analysis to Christie’s: “From [Sotheby’s] were beginners, scissors were safer “for Christie’s, because” stone is too obvious and scissors outperform paper. “The girls further explained” that beginners think that stone “feels” strong, so they hope that go for rock, so they choose paper to hit you. “As the girls predicted, Sotheby’s went for paper. On the advice of the girls, Christie’s chose the scissors and won the $ 17.8 million auction contract.

It goes without saying that rock, paper, or scissors is not a suitable method to resolve all disputes. However, where applicable, you may want to consult the RPS World Society, the Official Rock, Paper and Scissors Strategy Guide, your young nieces or nephews, or attend the next tournament near you. You can find tournament listings at http://www.usarps.com (held in June 2006 in Las Vegas, Nevada with a grand prize of $ 50,000) and http://www.worldrps.com (to be held in Toronto, Ontario, in September 2006).

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