Interests vs. Position: how to reach a wise agreement

I wish members of families in conflict could be forced to read “Getting to Yes: Negotiating Agreement Without Giving In” by Roger Fisher and William Uri.  Because families in conflict, whether it be divorce, probate, or anything else don’t have much time for leisure reading, I try to teach my Mediation clients the basic tenets of Interest Based Negotiations as best I can – for your enjoyment, my abbreviated version of the most important concepts. 

 1. Positions Bad:  Positional bargaining occurs when each takes a position, makes a line in the sand, argues for it, and then each make concessions to reach a compromise.  Every inch of beach gained by one is an inch lost by the other. 

a. This type of bargaining produces bad agreements, its inefficient, it endangers the relationship (by fostering resentment and anger), and in positional bargaining, if you’re being nice, you get screwed – have you ever heard the saying that a judge made a good decision when no one is happy – this is where that happens. 

2. Interests Good: The alternative to positional bargaining is interest based negotiations.  

a. In negotiations, there are always two negotiations going on – one is about the issue (parenting time), and one is about the procedure for dealing with the issue (shouting vs. angry e-mails).  This one tends to go under the radar, because the decision is usually made unconsciously.  Stop making unconscious decisions – take control of the situation… how? Below I explain how to engage in Interest Based Negotiations. 

3. Separate the people from the problem: People are not economics models, always making rational choices, we are emotional creature.  To make matters more interesting, we often have trouble communicating those emotions.

a. In positional bargaining your ego and emotions become tied to your position, so every inch of beach you give up also hurts you emotionally.  You can begin to separate the people (you, your ego, and your emotions) from the problem by seeing yourself and your opponent as teammates working side by side to attack the problem, not each other. 

4. Focus on interests, not positions: The point of the mediation or negotiation is helping people satisfy their needs, their interests, not to make sure they achieve their state position. 

a. Most interests or human needs can be satisfied by more than one position.  When you focus on the interest you can find many positions, or options.  When you focus on position, you just have the one – you don’t know if there is any other because you don’t know what the interests are.

b. When you explore what is behind the curtain of the parties’ positions, you will most often find more aligned interests than conflicting ones – especially in family conflict.

5. Generate many diverse options before deciding what to do: The pressure of staring at your opponent, and of coming up with the one perfect solution put a big damper on creativity.’

a. Set aside a time designated a safe space for “spitballing” or “brainstorming” use this time to come up with many options, some may work, many will not, this is not about finding the solution (remember, that kills creativity) its about thinking safely about shared interests and how to reconcile differing interests.

6. Base results on an objective criteria or standard:  In traditional positional negotiations, often, a party can “win” simply by being stubborn.  When you base results on objective criteria, you prevent his single say-so being enough to make or break the agreement:

a. Its not just the standard you select – a fair standard, such as market value, or the law.

b. When you discuss this criteria, rather than how much each of you is willing to give up, neither needs to give in (taking ego and personal issues out too!), rather, you can each defer to a fair solution.