That Time I Filed a Motion to Compel Rock, Paper, Scissors

A few years ago, I filed a Motion to Compel Rock, Paper, Scissors – and the court granted it.

The matter involved representation of a customer who had hired a contractor. The contractor’s written agreement contained most of the terms you might find in any services agreement, but very likely had never been reviewed by a lawyer.

You might not be surprised that there is not a lot of law on whether parties may elect to resolve disputes through Rock, Paper, Scissors, but there is some. The “seminal” case on rock, paper, scissors is Gulf Grp., Inc. v. United States, 61 Fed. Cl. 338 (2004), a case in the United States Court of Federal Claims, which merely provided a description of the rules of rock, paper, scissors in dicta.

The challenge in setting rock, paper, scissors as a dispute resolution is establishing what outcome is achieved if one party wins. Does the service provider receive full payment for the entire contract or only for what it performed? Does the customer receive all of its money back or only a portion to compensate the service provider for services provided?

There are likely a couple of strategic reasons why resolution via rock, paper, scissors may lead a client to a better outcome than other traditional ADR formats or through the courts.

In our case, the Court granted the Motion to Compel Rock, Paper, Scissors, but left it to the parties to establish the framework. The parties agreed to hire a third-party neutral to serve as a referee over proceedings and resolve any ambiguities involving the results of any game play, which we did. We picked a date, met at the neutral’s office, and….the case was resolved.