Serving Underlying Interests
Competent, well intentioned attorneys, as advocates, come to mediation, as they do in court, focused on the facts and the law that support their client’s legal positions. Their clients, similarly, focus on the financial/emotional harm they suffered, or allegedly caused, and seek justice or vindication from the mediator.
The mediator can lend a kind ear to the foregoing but, because the mediator is not the judge, the mediator – to succeed in the mediation – must move the parties’ and their attorneys’ focus away from the lock-step of the dispute and, instead, focus them on identifying, and then serving if possible, the parties’ underlying interests to find resolution.
In their masterful work on negotiation, Roger Fisher and William Ury give a great example of focusing on and reconciling interests instead of positions. In Getting to Yes (2d. ed. 1991 with Bruce Patton at p. 41), they write about two library patrons who cannot agree on whether the window should be open or closed or somewhere in between. In walks the librarian who asks why one wants the window open and the other closed. The first answers, “to get some fresh air,” the second says, “to avoid the draft.” The librarian serves both of their underlying interests by opening the window in the next room – fresh air, no draft.
The shift to focusing on the underlying interests of the parties helps them examine the following issues, and many others, critical to the resolution of the dispute: managing risk; avoiding uncertainty of outcome; reducing stress or health risk from stress; stopping the drain on time away from business or personal pursuits; limiting attorneys fees and costs; maintaining privacy; avoiding further embarrassment; moving on in life; preserving, protecting, or improving public reputation; preserving, protecting or improving business or personal relationships; obtaining some net benefit greater than the cost of the court fight; finding a way to make peace.
Of course the legal positions of the parties, and the facts and the law of each case, will play a part in mediation, as each participant examines the costs and benefits of settling or not settling. But the additional focus on the underlying interests of the parties will help them to find that elusive middle ground necessary to reach resolution.