– It’s not fair that the caregiver adult child receives more under the will than the daughter living away;
– not fair that the employee that is the biggest producer leaves and takes the business with her/him;
– not fair that the adult stepchild with the power of attorney paid him/herself for personal items;
– not fair that the lender did not properly apply the escrow and declared a default;
– not fair that the landlord increased the rent without notice, after the tenant complained about the plumbing;
– not fair…
When the conversation turns to “It’s not fair that…” it is an unspoken signal to address the parties’ ‘interests’ as opposed to their ‘positions.’
Interests invoke a problem-solving approach.
Positions are demands, offers, and other statements negotiators make to each other.
Interests represent the underlying needs, objectives, fears and ambitions that motivate the negotiators.
Your position is what you’ve decided upon and your interests are what caused you to decide. When you look behind positions to interests you can often find several alternatives that will lead to possible resolutions.
The most powerful interests are basic human needs. Often if you can take care of these interests you can reach an agreement. Those needs include: security, economic well-being, a sense of belonging, recognition, and control over one’s life.[1] Think about whether these drivers apply to your dispute. Is the behavior unfair because you are treated as though you do not belong in the family/your worth and contributions are unrecognized/you feel insecure economically/lack control in the business/life decision-making?
Note that asking this question is not asking for justification, but to understand the hopes, fears or desires that this position serves. One party may have the legal right to terminate the employee, raise the rent, and make unequal distributions from the estate, but what is their underlying objective in doing so?
For the other side, if a choice or conclusion seems obvious to you, consider why the other side has not made that choice? The parties may have some insights and biases about the other sides’ interests.
The disputing participants and their advocates need to know these interests not only to be able to address them in some solution but also to acknowledge them while working toward the solution. Respectfully addressing each other’s interests will ease tensions so trust can begin to be built. Some trust-building is critical to reaching agreements in disputes. Note that trust is needed in commercial as well as personal disputes. (All disputes are personal in some sense.) Trust that the negotiated agreements will be performed: the executor will distribute the account, the supplier will ship the product, the lender will not foreclose, the employer will provide the recommendation, and so on.
To successfully resolve disputes, a focus on interests will likely get to the core of the dispute. Couple that core understanding with the realistic assessment of a legal position and the matter is ready to be resolved by a negotiated solution. Call (603-568-7138) or email me (connie.rakowsky@gmail.com). I’d be happy to help.
[1] With thanks to Fisher and Ury, Getting to Yes and its progeny.