This month’s report is a summary of an article in the October 2014 Negotiation Briefings, published by the Program on Negotiation at Harvard Law School.
There are 3 primary ways of resolving disputes, write William Ury, Jeanne Brett, and Stephen Goldberg in their book Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (PON Books, 1993). First, parties can reconcile their interests – core concerns, needs, desires, goals and fears that underlie their positions. Thru negotiation or mediation, parties can engage the work of probing for the underlying core concerns, finding common interests, searching for creative solutions, creating value and making tradeoffs of opposing and common interests.
Second, parties can attempt to resolve disputes based on power by either imposing costs on the other side or threatening to do so. For example labor unions try to impose power by striking or threatening to strike. Other parties exercise power by filing law suits or threatening to do so.
Third, opposing parties can try to resolve their issues by determining who is legally or morally right. Each side argues that they are correct, right and fair. If opponents are unable to convince each other of their rightness, they many times take their dispute to court for a judge or jury to decide.
Ury, Brett, and Goldberg encourage disputants to focus on reconciling interests because interest-based negotiators are more satisfied with their outcomes than those who focus on power or asserting their rights. Interest-based negotiations tend to lower costs, lessen the strain on relationships and result in fewer subsequent disputes.
With each side arguing that it is more powerful and its position is the fairest, the parties become locked into their positions and become incapable of seeing the other side’s point of view. Each side needs to put themselves in the other party’s shoes.
An interest-based mediator can help the parties replace contests over rights, fairness and power by focusing on interests that underlie opposing positions. Positions are statements about what a party wants. An interest is the underlying reason, value, core concern, desire and goal that give rise to a position. “Interests motivate people; they are the silent movers behind the hubbub of positions. Your position is something you have decided upon. Your interests are what cause you to so decide.” Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In, pp. 40-41(New York: Penguin, 1991). Fisher, Ury, and Patton add on page 42: “Behind opposed positions lie shared and compatible interests as well as conflicting ones.” An experienced interest-based mediator can help each side carefully explore to find shared interests.
If you missed New Frontiers in Marital Property last week, you missed a great CLE program.