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Understanding needs and interests in mediation

Mediation: Interests vs. positions

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Consider the story of two men quarreling in a library: one wants the window open and the other wants it closed. They bicker back and forth about how much to leave it open — a crack, halfway, three quarters of the way. No solution satisfies them both.

Enter the librarian. She asks one why he wants the window open. “To get some fresh air,” he replies. She asks the other why he wants it closed. “To avoid the draft,” he answers. After thinking a minute, she opens a window in the next room, bringing in fresh air without a draft.

This illustration of “positional bargaining” as discussed in “Getting To Yes: Negotiating Without Giving In,” by Roger Fisher and William Ury says a lot about how most of us deal with conflict, including in the matrimonial area.

Just as in the library example, we want or demand something — let’s say, it’s the house. We are unable to look past our demands any more than the bickering men could look past the window.

Speaking about mediation recently at the Queens Chapter of the New York State Society for Clinical Social Work, I thought of this story, as well as a much more serious situation involving war and peace, life and death:

In 1978, Egypt and Israel successfully negotiated a peace agreement. Previously, they had fought numerous wars; their history was bitter and bloody. Yet, they made peace. How did this happen? And what can the answer possibly mean to you?

In talks between Israel and Egypt, also discussed in “Getting To Yes,” the parties started with incompatible positions:

[Background: In the 1967 war, Israel had captured the Sinai Peninsula from Egypt.]

Egypt’s position: Israel must return all of the Sinai; every inch.

Israel’s position: Israel must keep at least part of the Sinai.

If the discussions had gone no further — if the parties had only been able to look at the window, so to speak — negotiations would have quickly broken down. So what happened? How did longtime enemies move forward in their talks?

Like the librarian, negotiators and mediators asked questions, in particular, “Why?”

Egypt asked Israel, “Why do you need part of the Sinai?”

Answer: “Security. As long as Israel holds the Sinai, Egyptian tanks will be far from our border. In case of a conflict, having the Sinai will allow us time to mobilize, and if necessary, to fight in Sinai rather than on Israeli territory.”

Israel asked Egypt, “Why do you need to have all of the Sinai back? Why every inch of that desert?”

Answer: “Sovereignty. Sinai is part of Egypt. It belonged to Egypt in the time of the Pharaohs. After domination by other powers, Egypt has once again become a sovereign country. Having land occupied by Israel is a loss of prestige and unacceptab­le.”

Understanding both parties’ underlying needs and interests created the possibility of developing options to meet their mutual needs.

The results: All of Sinai was given to Egypt; Egypt regained full sovereignty, and its needs were met. Much of Sinai was demilitarized; Egyptian tanks remained far from the Israeli border, and Israel’s need for security was met.

Now, getting back to you.

Do you both want the house? Obviously, you both can’t have it. There is only one, and you can’t cut it down the middle.

So get beyond your positions, and ask yourselves, and each other: “Why do we each want the house? What does it mean to each of us?”

The husband might say, “I have nowhere to go.”

The wife might say, “I grew up in this house. My ties are here.”

If the husband’s underlying concern is having a place to live, maybe he would be willing to part with the house, if his needs for security can be met. If so, the spouses will no longer be fighting over the house. Instead, they can create options allowing the wife to keep it, while allowing the husband to have his own place.

Mediating involves understanding needs and interests. Israel and Egypt did it. Can you?

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin, Esq, helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to lc-mediate.com/home.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice. Discussing your particular case and circumstances with a legal professional before making important decisions is strongly encouraged to safeguard your rights.

Updated 4:38 pm, December 9, 2016
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