I have read a lot of the writings of experienced mediators and scholars on conflict resolution and the themes almost always return me to the book I consider my bible for conflict resolution, Getting to Yes, Negotiating Agreement Without Giving In, Fisher, Ury, and Patton (3rd ed. 2011). The title of Chapter 1 of GTY is “Don’t Bargain Over Positions.” As Fisher & Ury write: “The basic problem in a negotiation lies not in conflicting positions, but in the conflict between each side’s needs, desires, concerns, and fears.” Because the real conflict is interest-based, bargaining over positions can be frustrating and many times futile.
Helping the parties identify and focus on their underlying interests instead of their positions is easier said than done. Neither is a simple task where the positions are entrenched but surprisingly (at least to me), it is easier to identify the interests than it is to keep the parties’ focus on them — or more specifically, to help them move past the entrenched positions. A mediator’s ability to accomplish this is one of the reasons Kenneth Cloke claims there is magic in mediation. The Magic In Mediation : A Search For Symmetries , Metaphors And Scale-Free Practices, Cloke, Kenneth (Good Media Press, 2023).
After 35 years as an advocate and more than 26 as a neutral, I have come to the somewhat cynical conclusion that persuading the other side that you are right and they are wrong is nearly impossible — particularly after parties’ positions have become entrenched. If this is true then why is mediation so successful? Since the collective value of settlement is (almost) always higher than the value of prolonged litigation, it could be argued simply that mediation is an opportunity for the parties to focus on the alternative risks and costs.
Perhaps, but this explanation is too dismissive of the process and the value of a good facilitator. In any conflict, but especially in litigation, there is a natural tendency to focus on positions. A client comes to their lawyer with a set of facts with the expectation that the lawyer will apply those facts to the law — or vice versa — and maximize the client’s recovery. This then becomes the party’s position, which becomes more entrenched as the lawyer works through discovery and motions and the client pays more and more for the defense of this position.
Getting to Yes was not written specifically to address conflict that has risen to the level of litigation but I would argue its teachings are even more relevant for the disputes we are engaged in. How then does a good mediator help your client get past the entrenched position to bargain based on interests?
Turning back to Getting to Yes, Fisher & Ury suggest putting yourself in the other side’s shoes and ask yourself: Why? Why is the other side taking a different position? You might also ask: why is your position important to you? The authors suggest that the answer to the former question is likely to be one of their interests. However, it is likely that each party has multiple interests. If there is more than one plausible answer, you will need to do more to determine which is correct.
Another core question should be: Why Not? Why is your position unacceptable to the other side? Why is their position not acceptable to you? Although in a money negotiation it may seem that the answers are: I want more or I want to pay less, there is almost always a deeper interest. This is particularly true where the rational (calculated) expectation of recovery less cost of recovery (BATNA) is less than the offered settlement.
There are often times when a party is unwilling to identify for the other side the interest underlying their position. For instance, a party may have a merger or acquisition on the horizon — or the bargainer has a limited range of authority and is more concerned about reporting a result outside the expected range than what may rationally be the best result. These interests absolutely impact the negotiation and make them more or less likely to compromise. Although you may not want to share the interests that are important to your client, it is still incredibly important to identify them and try to identify the interests of the other side. These interests are where compromise must take place and where creative solutions can be found.
In Magic in Mediation (“MiM”), Cloke describes the use of questions in mediation. The book goes so far as to list the types of questions appropriate for specific types of disputes. Of course, the lists are neither intended as a script nor an exhaustive list, they are illustrative and worth reviewing.
Just as no two conflicts are identical, neither are any two mediations or any two mediators. However, ”[c]learly, the most useful and effective questions in mediation are those that mirror the interest-based nature of the process, allow conflict resolvers to elicit the deeper meanings of the conflict to each person; and point to multiple, diverse, non-zero-sum answers, or to alternate paths that might be taken to resolve, transform, and transcend it.” Cloke identifies the goal of our questions as identification of how the parties think the litigation will improve their life or business and what it would take to let go of the conflict. “There are countless questions [seeking to identify these interests] that can fundamentally transform what happens in conflict conversations.”
So, what questions should you be asking your client to identify their underlying interests? If the likelihood of persuasion is small, ”[w]hat question could either of you ask that, if answered, might convince you that you are completely wrong about what you’ve been thinking about each other, or about the issue?” What question or questions could help identify interests that suggest a compromise in positions?