Why do we want something?
Many disputes are characterised by both sides taking hard positions on what they want. Those positions lie at the surface of any dispute and describe what a party wants but not why they want it.
Two chefs, one orange
The classic parable of the two chefs illustrates the difference between a stated position (the what) and the underlying interest (the why).
Two chefs were busy preparing separate dishes, both of which required the one remaining orange in the kitchen. An argument ensued with both chefs demanding the last orange. Neither chef was willing to give ground to the other, and they became more entrenched in their positions as the argument rumbled on.
Unable to reach an agreement, the chefs took their dispute to the owner of the restaurant. The owner asked each chef how they intended to use the orange. One chef wanted to use the zest from the skin of the orange. The other chef wanted the juice. The owner peeled the orange, giving the skin to one chef and the flesh to the other, satisfying the requirements of both.
The position held by both chefs was that only the whole orange would do. Their interests, the reasons behind their respective positions, allowed them to reach an accommodation without compromising on what was important to them.
Not all interests are as straightforward, but the principle is clear, and the approach to identify them is broadly the same. Positions tend to be a simplification of what the dispute is about. It is only through communication and by asking why a person or organisation has taken a position that we can identify their interests.
Even where positions relate to money or a complex contractual dispute, the underlying interests often include non-financial, basic human needs: for example, the emotional need for fair treatment and self-esteem. Interests that relate to basic human needs should not be ignored. As William Ury of the Harvard Negotiation Project points out in his book Getting to Yes:
“The most powerful interests are basic human needs. In searching for the basic interests behind a declared position, look particularly for those bedrock concerns that motivate all people. If you can take care of such basic needs, you increase the chance both of reaching an agreement and, if an agreement is reached, of both sides keeping to it.”
The interests that underpin opposing positions typically have some overlap that can be used to reach a mutually satisfactory outcome. It is therefore as important to try to determine the other party’s interests as it is to identify one’s own. By understanding not only what the other side wants but more importantly why they want it, a skilled negotiator can craft a mutually beneficial solution that addresses what is important to both sides.
Mediation as an approach to identifying interests
During the course of a mediation, the mediator listens to both sides. Through careful questioning, the mediator helps the parties to identify interests (their own and those of the other side) together with any areas of overlap that could promote a settlement.
The mediator has a duty of confidentiality and will not disclose information from one side to the other without express permission to do so. However, having gained an understanding of what is important to both sides, the mediator can assist them to formulate an approach that is also based on their interests rather than their positions alone. By focusing on interests, and dealing with what is important to both sides, the prospect of reaching an agreement is increased.
Had the two chefs in the story above gone to court, a judge would have listened patiently to the evidence and legal arguments presented by both sides and awarded the orange to just one of them. The loser would have failed to complete his dish. The winner would likely have failed to recover all of their costs from the other side, given the relative value of the orange to the costs incurred.