Earlier this month, I had the privilege of participating in a weeklong mediation training at Harvard Law Schools’ Program on Negotiation. It is known as one of the best such programs in the country, and I learned why. Five accomplished mediator-instructors and 48 participants, with legal and non-legal backgrounds and from 13 countries, for 9 hours per day. I learned many lessons through the presentations, exercises, and reading that are well worth sharing. There are five that I believe are especially useful in the context of employment disputes. In a previous post, I discussed the first — on using joint mediation sessions in employment cases.
Lesson #2: The Parties May Get a Better Deal by Focusing on Interests, Not Positions
In the world of employment law, lawyers and their clients often come into mediations focusing only on a specific structure for settlement – their positions. Comedian Billy Connolly famously — if profanely — provides an example: http://www.youtube.com/watch?v=i2KLyBapfTc. A mediator may be able to elicit from each party the goals that that party wants to achieve and why – theirinterests. By concentrating on the latter, the mediator may help the parties generate options for achieving their goals that are even better than the positions they initially articulated.
Instructors at the mediation training illustrated the difference between the two kinds of bargaining this way: a parent was refereeing a dispute between his two daughters. Each took the position that the last orange in the house was hers. Exasperated, the parent cut the orange in two and gave each one half of it. Both kids were equally unhappy with this result. What the parent did not know, however, was that one wanted the orange to squeeze for juice, and the other wanted the peel to put in cookie dough. If the parent/mediator had elicited the interests of each child, he could have given the functional equivalent of a whole orange to each of the kids!
In the employment context, one or both parties may begin a mediation believing that they will be negotiating only about the amount of money (if any) the employer is willing to pay the former employee. But if the mediator probes to understand the goals underlying their respective positions (e.g., the defendant-employer may not have good cash flow in the fourth quarter; the now unemployed plaintiff is concerned about sustaining a big tax hit this year on a lump-sum payment), she may help them find the common ground that can create more value to both parties than if each had clung to the positions held at the beginning of mediation (e.g., a discounted lump-sum payment paid in the first quarter of the next year). A mediator who is adding value to the mediation sometimes can help locate the interest of each party that underlies that party’s position and use that information to help move toward settlement.