Even those negotiators who have not found time to read Roger Fisher and William Ury’s seminal work, Getting to Yes, are probably familiar with one of its core points: turn the focus from positions to underlying interests. How exactly to do this, particularly where the parties have staked out aggressive conflicting positions in advance, is not quite so easy.
Let’s take a recurring problem we see regularly in northern New England: neighbors fighting over a boundary line. One side believes that the other has trespassed across a surveyed property line, invading his or her land. The other, pointing to historic use for decades, claims ownership through adverse possession. The first neighbor puts up a fence. The second neighbor tears it down. Words are exchanged, further retaliation occurs, police are called, tensions escalate and each side lawyers up.
By the time the dispute gets into court, these neighbors are sworn enemies who don’t even want to be in the same room for the mediation session.
When I meet in private caucus as mediator, I hear surprisingly similar points from each side: (1) I am right and the other side is wrong; (2) we are going to win this case in court; (3) my neighbor is a horrible person who has done terrible things without any justification; (4) my neighbor is dangerous; and (5) I am worried about my family, living next door to this person. Each side expresses serious doubt that this case can be resolved short of trial.
In trying to resolve these cases, I first let each side tell their story fully, recognizing the need for each side to be heard. I then work on reframing the problem temporally by focusing on the past, the present and the future. Everything that has happened up to the day of the mediation is in the past – it cannot be changed or undone. This mediation is a present opportunity to seize control and thereby change the relationship of the parties in the future. And it is here that there is an easy pivot into interest-based negotiation.
Despite their strong differences, these neighbors actually share significant common interests going forward:
• Ending this escalating dispute which is making their lives miserable.
• Living in peace.
• Protecting the safety of their families.
• Stopping legal expense.
• Knowing that their property line will be respected by the other neighbor.
• Not spending time in litigation, with a possible ending that might not be favorable.
• Controlling the outcome.
If the neighbors reside next door to each other, these interests are all wrapped up in the fundamental concept of “home.” We all want our homes to be safe, secure and a place of refuge. Disputes with neighbors attack that common interest.
We discuss the fact that if the case goes to trial, there will be a winner and there will be a loser. Court decisions on boundary disputes, in particular, tend to be black and white. One neighbor may win the legal claims but the other will walk out of that courthouse feeling aggrieved and very unhappy. Does the winner want that aggrieved and unhappy person living next door?
Unlike a court ruling, the mediation process allows the neighbors to find peace with each other and move on. There are a host of creative, interest-based options to resolve these disputes:
• One neighbor pays the other cash for a quitclaim deed to the disputed area.
• One neighbor pays the other cash for an easement over the disputed area.
• The neighbors swap land so one ends up with the disputed area in exchange for another parcel.
• The neighbors agree on a new compromise boundary line and split the cost of a surveyor and boundary line adjustment.
• One neighbor foregoes any claim to the disputed area in exchange for the other neighbor assuming the cost of putting up a fence along the common boundary.
Sometimes it becomes clear in the mediation that the interests of the parties are best served by just ending the relationship. In those instances, we may discuss a purchase and sale agreement and negotiate a price by which one neighbor buys out the other.
The point here is that the strongly conflicting positions of the parties walking into the negotiation will often mask strong common interests that may provide the basis for complete resolution. Disputes between neighbors are only one example of how separation of positions and interests can open doors to resolution. By reframing past-focused positions into future-focused interests, a broad range of seemingly “impossible” disputes can be ended with truly lasting solutions.