As lawyers we are trained to discover the facts of a dispute and apply the law to those facts. Lawyers are good at uncovering the what, when, where, who, and how of a dispute. All necessary ingredients for good trial preparation. But how often do you understand why? Why are the parties in conflict? Why can’t they resolve the conflict?
Mediators have the luxury of hearing both sides of the story. We hear those stories from both counsel and the party in conflict. I am sometimes asked why, if everyone knows the mediation will come down to a money exchange, we do not just skip ahead to that negotiation. The answer is that if that was all that mediation is, there would be little need for a mediator. Understanding the conflict story almost always opens possible solutions that are otherwise obscured.
Somewhere deep in the answers to the question “why” are hints at possible solutions. The primary discipline used in civil case mediation is facilitative with a heavy dose of evaluation. Of course, asking why directly is not likely to be a productive inquiry. Parties are, understandably focused on their positions. Nevertheless, every model of mediation indirectly alludes to this inquiry.
For instance, one of the key elements of “Getting to Yes,” the book most facilitative mediators consider the bible, is to focus on interests not positions. The reasons for focusing on interests may not be, strictly speaking, to get to the question of why but it is difficult to identify underlying interests without an understanding of why the parties are in conflict.
Focusing on why parties are in a dispute will open up potential opportunities that are obscured by bargaining positions. Learn more about this element of the Getting to Yes model here.
Negotiation -- Ask Why and Why Not?
In my lectures and writing on preparing for mediation, I encourage parties to map a negotiation strategy in advance. Start by determining your reservation point or walk-away price. Then map out a strategy to get there, including the starting demand/offer and incremental moves. The latter is heavily influenced by the other side’s reaction to your positions but there is value in considering where you would go based upon different responses.
The second part of this exercise is to try and determine what the other side is trying to achieve. This part of the exercise is not easy but, in my opinion, well worth the effort. How do you do that?
Fisher & Ury, authors of “Getting to Yes,” teach that the best way to uncover underlying interests is to ask yourself and your opponent two questions: why and why not? First, try to put yourself in their shoes and ask yourself why are they taking the position they are taking? Then try to understand why they are not willing to do what you are asking them to do? *Why and why not?* Many times in mediation, the parties are in a better position than a mediator to understand their opponent … if they try.
Exploring the parties interests is where the true value of mediation lies. It is difficult for an advocate to ask the other side about the interests underlying a position without making them defensive about the position. If the exploration of underlying interests becomes a justification of the position the entire exercise is self-defeating. A good mediator can explore the parties’ underlying interests without the perception of attacking the positions. An adversary usually cannot.
Understanding why your opponent is taking the position they are taking should illuminate why they are not willing to accept your proposal. Even if you never uncover the underlying interests that are so important to a facilitative approach to mediation, walking through the various possibilities in advance puts you in a better position to adjust during the heat of a mediation.