Dispute Resolution Counsel

Interest-based negotiation works in everyday life disputes too

Don’t you love it when your spouse or one of the kids responds to your statement of your view or your position with a “gotcha” something along these lines:  “Why don’t we just apply the stuff you do at work every day with your clients to this home and/or family situation?”  In other words, practice what you preach.

The “what I do for my clients”, in my case, is to work with them to resolve their legal disputes in ways that are non-adversarial and “interest-based”.   You can define “interest-based negotiation” as focusing on satisfying the interests of the parties, rather than focusing on the position each party takes, and spending your time determining who is right and who is wrong (or more often, who is more right than the other).

This minor disagreement below between a husband and wife provides a simple example of the difference between a positional argument and a principled negotiation. You can probably project the end result of each path.

A week or so ago, my wife and I were driving down to New York to my son’s engagement party in West Harrison, NY and to visit my wife’s brother and family in Somerville, NJ.   My daughter flew in for the weekend for the occasion from California, so it was an opportunity to spend time with her too.  West Harrison is about an hour and a half from Somerville.  We drove down Saturday morning from Massachusetts, planning to return home after the engagement party Sunday evening.

While we both shared the interests of spending time with both parts of our extended family, we had yet to determine how much time would be allocated to NY and how much to NJ.  And therein the disagreement arose.  There were basically four chunks of time:  Saturday afternoon, Saturday night, Sunday morning and Sunday afternoon.  We had agreement on Saturday afternoon (NJ) and Sunday afternoon (NY).   The middle chunks were at issue.

You can probably predict how the discussion might sound if it starts and stays positional.

Husband:  I want to spend Saturday night with the kids and Sunday morning a little father –son time with my son.  Why don’t we spend a few hours with your brother and the family, and then head back to NY for a late dinner and stay over in NY?

Wife:  I really want to spend more time with my brother, his wife and daughter.  We’ll see the kids at the engagement party Sunday afternoon.

Husband:  That doesn’t give us some quiet quality time with just the kids.  And you know if we stay over, it’ll be difficult to just leave NJ early in the morning and get back to NY for breakfast.

Then comes the critical moment; the choice made that divides the road traveled decisively.  Wife:  Dead silence.  Or worse than that:   “FINE!”  Experienced husbands are well aware of the depth of the definition of the word “FINE” in that context:  i.e. the opposite of fine.

Roger Fisher (“Getting to Yes”) offers some key advice here:  Separate the people from the problem.  If this goes down the “your family vs. my family” road the wellbeing of a weekend and happy occasion, and maybe an even longer period of time, hangs in the balance.  So right here, before the second “FINE” or the second five minutes of icy silence”, we need to make the choice to focus on satisfying interests.

The next suggestion that is offered up by either party is one that can either open that door or slam it shut and begin full battle.  At first, it sounds worse than it really is:  Why don’t we split up here:  wife goes to NJ; husband stays in NY with kids or at hotel until dinner.  Wife returns to NY Sunday for the party.   This part sounds pretty good, generally, but in my case, it didn’t satisfy one of my interests:  I wanted to spend time with my brother in law and his family too.

So we keep the negotiation walk going a bit more down the interests-based path.   Husband offers to drive down to NJ, spend about 4 hours with the brother and family and then either drive back to NY and wife comes to NY by public trans. the next day, or husband takes public trans. back to NY.  This satisfied his needs in exchange for 2-4 hours of extra travel during dead time when kids were all busy.  Wife appreciates the effort by husband and suggests that she’ll take train or bus to NY Sunday.  Husband appreciates concession by wife and now wants to reciprocate.  To do so, he needs to bring in a third party stakeholder into the discussion – the brother.   Rather than have wife/kid sister take public transportation, something both husband, brother and wife wish to avoid (shared interest), they agree that the next morning, after breakfast, they will each drive 45 minutes and meet halfway, rather than have wife go with public transportation.

That is a simplified example on interest-based negotiation.  If you don’t think this kind of non-adversarial approach has value, imagine the other version of the story and what Sunday’s party and the ride back to Massachusetts would have been like had wife fired back with that second and devastating “FINE!”   LOL

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