Explore Rights, Obligations, Remedies, Issues, Positions, and Interests
When a party in dispute is stuck on a single issue, one of the best solutions is to help him explore his rights and obligations, the available remedies for the perceived assault on his rights or over-estimation of his obligations, the legal restrictions on the available remedies, the issues being contested, each party’s position on those issues, and whether the party is acting in his own best interest.
Parties in dispute are often unaware of all the issues that have turned a conflict over scarce resources, pride, or identity into an active dispute. A party may be aware of his legal right to receive what the other party promised under their contract but totally unaware of his own obligations under that contract, such as his duty to mitigate any loss caused by the other party’s breach.
A plaintiff may be aware of the remedies to which he’s entitled but unaware of legal limits on those remedies. Some people are so focused on their legal rights that they forget to ask themselves whether the enforcement of those rights would best serve their interests.
A party who takes a strong position on an issue relating to his rights sometimes forgets that his interests may be better served if he stopped fighting about the issues and concentrated on serving his interests instead.
Explore values, identity, and power
When a party negotiates against her own interests, she usually places more importance on values, identity, and power than on her own narrow and immediate self-interest. This often occurs in politics when people vote against policies that would actually benefit them.
Many people who can’t afford health insurance or healthcare, for instance, prefer to remain uninsured and forgo healthcare than to be required to participate in a government-sponsored program.
In a mediation, basing decisions on values, identity, and power often leads to gridlock, but only if the mediator fails to ascertain and help the parties appreciate what’s really standing in the way of resolution.
Frequently, breaking the gridlock is simply a matter of letting a party know what she’s doing and its effect — undermining her own interests. In other cases, focusing on values or identity creates an entirely new path to resolution.
Keep an open mind to what motivates a party
As a mediator, don’t assume what a party’s motivation is or let other participants make that assumption. Until someone tells you what he’s thinking, why he wants what he’s seeking, or why he’s unalterably opposed to satisfying any request made by his adversary, you don’t know anything useful that may help the parties resolve their dispute.
A man seeking monetary damages for injuries he suffered in a traffic accident may be trying to get reimbursed for his out-of-pocket expenses, hoping to strike it rich, or asking for compensation because he knows of no other way a corporation can be held accountable.
A husband may be suing a physician or hospital for the death of his spouse because he’s never gotten an adequate explanation for why she died. A wife could be fighting over the custody of her children solely to make her former husband’s life miserable because of his infidelities.
When helping people find the heart of their dispute, keep a mental checklist of what you learn about each party’s positions, interests, constraints, rights, obligations, remedies, values, and identity. Also be prepared to help people express what they’re really fighting about when they irrationally reject a reasonable, even generous, offer.
If the parties are stuck on money, explore their intangible interests. If they’re stuck on their legal rights, explore tangible benefits that may not be available as remedies in litigation. If emotions seem to be preventing a party from making a pragmatic decision, explore the power or identity issues that may need resolution.
The bottom line is to never give up and to make sure you explore every possible avenue of potential value or impasse, even if it seems unlikely to resolve the problem. Patience and persistence always pay off.