Guideposts give direction. In the context of disputes, interests and goals are signs that point towards the solution. When your interests and objectives are addressed and the outcome is consistent with your goals, you experience resolution of the conflict. There are occasions when action must be taken in response to events that have not yet occurred. Guidelines provide meaningful parameters in these situations.
This chapter will define what interests and objectives are, with a checklist provided for uncovering the particular interests and objectives involved. There are guidelines for how decisions will be made when agreements are being carried out or how changes are put in place for a project. The importance of identifying goals will be reviewed. A second checklist sets out questions to consider when setting goals in various types of disputes. Useful tips are found at the end of the chapter.
Interests and Objectives
A position is what people believe will meet their interests. I want the same vacation package at the same price!
Interests are those needs, hopes, fears and concerns that inform a position and motivate people. We had such a good vacation last year, we hope to repeat it. We need to keep costs fixed – this is our holiday budget. We are concerned that if we agree to any change, we will be taken advantage of and end up with either a more expensive holiday or with accommodation that is not as good as we planned for. When stated this way, the position – the same vacation at the same price - is usually only one of several ways to fulfill the interests.
To illustrate, phrases such as I want the…, There’s no way…, and I must have… are positions. Without more information, it appears that there will be a loser and a winner or that both will have to compromise and give up some of what they want. When confronted with positional statements, there is a tendency for disputants to respond by expressing their own positions. There is also the risk of stalemate – what is the point in continuing the discussion? An alternative response to positions is to ask an open question: What do you plan to do with…? or What’s important about…? Tell me more about… The answer will reveal interests, and often leads to better outcomes than win/lose or compromise.
Interests can be sorted into three categories:
Often, through the use of open questions, what appear to be incompatible interests may in fact be complementary. Or, the areas that are in opposition can be narrowed and creative ways to meet these interests are uncovered. For example, one disputant may have something that the other disputant is willing to trade for. Keep in mind that what one person values will not necessarily have the same value to another person, and vice versa. It is also possible to utilize timing or tax laws for mutual gain.
There may be interests underlying interests, which must be uncovered to enhance and expand the understanding of the disputant’s needs, wants, hopes and concerns. Think of interests as a many faceted gemstone. Each side of the gem has a texture, depth and color that enhances meaning. As an interest is expressed, ask What’s important about that? The answer is another, underlying interest. Keep exploring until the answer to the question, What’s important about that? is It just is! The goal of this exercise is to reach the heart of the gem for each interest.
Needs and hopes are often mirror images of concerns and fears. While it is important to be aware of concerns and fears, focusing on them tends to make problem solving more difficult. Rather than brainstorming creative solutions to realize their needs and hopes, disputants concentrate on how to avoid their fears and concerns. Negotiations can become mired. When a concern or fear is expressed – I’m afraid that this dispute is going to ruin me financially – restate it as a need or hope – I need to settle this dispute in a way that keeps me solvent.
Using the term ‘interests’ can be misleading. At times, ‘interests’ are confused with ‘issues’. Also, the term fails to make the distinction between objective interests that are essential components of settlement and subjective interests that are less critical ‘wish lists’. For these reasons, it may be more useful to use the term ‘objectives’.
Hammond, Keeney and Raiffa (1999) define ‘objectives’ as those refined hopes, fears, needs and concerns, that have been identified, made succinct, distinguished from ends, clarified and tested. The resulting list of objectives should describe what the disputants really need. My objective is to leave this partnership quickly and at a fair price. Timing is critical. The amount of settlement is important. While less important than timing and price, I would like to find a way to allow both of us to maintain mutual respect and possibly continued friendship.
Each disputant’s objectives could have commercial, relational and legal aspects. Some, but not all objectives, are essential components of any settlement. Fisher and Ertel (1995) developed a process for uncovering and sorting interests that can also be used to sort objectives. They advocate a two-step interest analysis conducted separately by each disputant. The first step identifies the interests of each disputant as well as others who may be significantly affected. The second step sorts interests or objectives by importance and distinguishes which are on the ‘wish list’ and which are essential components of the resolution. Being aware of objectives can also prepare disputants to:
One final question to keep in mind when conducting an interest analysis is: Are there really any incompatible interests? The apparent conflict may be illusory, a consequence of an erroneous understanding about the other disputant’s intentions and aspirations or inaccurate beliefs that the other disputant’s actions will create costs. Checking out assumptions will uncover misunderstandings that may be fuelling the conflict.
Use this checklist to gain insight into what is motivating you, to make your best guess about what is motivating others who are involved in the dispute and to brainstorm creative ways to meet both your objectives.
Checklist #9: Interests and Objectives
Some Thoughts about Guidelines
Just as objectives can guide decision-making among two or more disputants, guidelines can be formulated to address ‘how decisions will be made’ as an agreement is implemented or a project is carried out. The following story is illustrative of this concept:
It is important that guidelines are arrived at in an open process that is truly respectful of the objectives of those who will be impacted by them. Here are other examples of guidelines:
There are drivers that energize and enhance outcomes just as there are drags and inhibitors to conflict resolution. Too frequently disputants become mired in the details of the dispute and in the emotions of the conflict. They lose sight of their goals.
What are your goals, in the context of this dispute? For individuals involved in a marriage break-up, this question is better phrased as, What are your goals for the rest of your life? This is because family disputes inevitably impact self-definition, interactions with others, the extent of active parenting, ownership of assets and the ability to meet day-to-day expenses. Other disputes – such as, the recovery for loss from an accident in which there was a serious injury, the abrupt end of employment, or, disputes among siblings over the management of their elderly parents’ estate - can also have a long-term impact on the future.
Create a clear picture of your goals early in the dispute resolution process. When doing so, chose a specific amount of time into the future, such as 3 to 5 years.
The following chart lists questions to consider. Write down the answers. Imagine what it will be like for you when your goals are met. Feel yourself enjoying your future goals. Create details in your mind. This is known as visualization. It takes your focus off the conflict events and places it on what you want. Imagine being thankful that your goals were realized. Resist orchestrating how your goals will come to be – simply believe and accept that they will.
Checklist #10: Goals
Goals are powerful. As disputants move through the process of resolving their dispute, goals can be used in at least three different ways.
Energizing Negotiations: Initially, creating goals helps disputants become clear about their direction vis a vis the dispute. To illustrate, you may be representing mining interests in a negotiation about the use of lands that are claimed by First Nations people. What are your goals? Imagine 3 to 5, even 10 years, after the agreement is signed. How will the mining interests you represented be thriving? Or, you may be separating from your spouse. What are your goals? In 3 years, when you encounter your spouse at your child’s grade 12 graduation, how do you interact and feel about each other? This exercise will change the focus from what’s bad or wrong about the other party to one that is addressing the dispute in a creative and energized manner. This energy is helpful. Frankly, it is like jet-fuel for dispute resolution.
Breaking Stalemate: From time to time disputants get stuck. They are in a state of stalemate. They feel that there is no chance that their dispute will be resolved. They are exhausted. They believe that they have given too much and that there has not been a reciprocal recognition of what is important to them, or the group that they represent, by the other party. They are faced with a decision. The emotional response is to accuse the other party of insincerity. Yet, intuition warns that to do so could result in an abrupt cessation of negotiations and, possibly, an increased level of conflict. What can disputants do in these circumstances? There are various methods of overcoming a stalemate. One strategy is to review goals, and then ask, What decision at this point of the negotiation will take me closer to my goals?
Enduring Resolution: At times people enter into an agreement only to find that the terms of the agreement are never finalized. Why? Again, there are several explanations for this. Certainly, bad faith on the part of a disputant is a possibility. Still another possibility is that all of the people who needed to be involved in the solution were not included in the negotiation. Yet another reason that an agreement is not honored is because it does not meet the goals of a disputant. One or more of the terms of the agreement creates dissonance with what is deeply important to that party.
When disputants have recorded their goals for the dispute at the commencement of negotiations, they can compare the tentative or draft agreement with their goals. Do they complement one another? If not, why not? It is possible for disputants to change their goals during the negotiation. If this is the explanation, the question becomes, do the revised goals and the agreement work together? Alternatively, the agreement may conflict with a disputant’s goals. When this is the explanation, it is unlikely that the agreement will be honored. The conflict is not resolved and will emerge in the future. Rather than sign an agreement that is inconsistent with goals, my suggestion is to return to the negotiation table.
There may be resistance to setting goals. It can seem easier to simply ‘keep on doing’ rather than taking the time to reflect on the why of activities and on what is desired for the future. Goals can be difficult to articulate. This may be because the event giving rise to the need for change, is recent. Another possibility is that there is tension among the goals. They may seem to conflict. Work through the resistance as goals that are not addressed tend resurface later.
In addition to identifying your interests and clarifying your conflict resolution goals, you need to collect the information and data that you will use to make decisions. You will also find it helpful to conduct a risk analysis so you know what a good settlement looks like. Chapter 9 addresses these important preliminary matters.
#1 There are numerous ways that your goals can be met. Let go of the how. This will keep you open to creative proposals that will emerge. Examine each proposal – will it get you closer to your goals?
#2 There are times when a dispute also impacts the individual’s self-definition. Here are some examples: an injury may be permanent necessitating a career change; a person who has been forced to retire is no longer a valued employee; and separated couples are no longer spouses. In these circumstances it is vital to set a goal that describes a new self-definition.
#3 Take time to write down your interests before the mediation. With each, ask yourself, What’s important about that? Write down the answer. These are underlying interests. Each time that you record an underlying interest, ask, What’s important about that? Keep repeating this process until your answer is, It just is! This is your signal that it is time to go on to the next interest.
#4 Parents often have difficulty distinguishing their interests from those of their children. When you are preparing for a negotiation that involves both you and your children, record your interests on one sheet of paper and write your interests for each child on a separate paper.
#5 If you are an attorney, learn what your client’s objectives are. Which needs and concerns are important? Why are they important? Prioritize these objectives in the order of their importance. Which objectives must be satisfied in any settlement and which are optional? Next, review the list of important objectives that must be met and ask: What are creative ways of fulfilling your client’s objectives? For example, can time be traded or expanded? Are there additional participants who could be involved thereby increasing the resources that are available to reach a resolution? Make hunches about what the other disputant’s objectives are and consider how they could be met. Be open to hearing the other disputant’s objectives at the mediation.
Byrne, Rhonda. the Secret. New York: Atria Books, 2006.
Fisher, Roger and Danny Ertel. Getting Ready to Negotiate: The Getting to Yes Workbook. New York: Penguin Books, 1995.
Hammond, J., R. Keeney and H. Raiffa. Smart Choices: A Practical Guide to Making Better Decisions. Boston: Harvard Business School Press, 1999.
Nesbitt, Thomas. Lawyer, mediator and principal of Avati Associates: Environmental Policy, Planning, Facilitation and Negotiation. Interview, Vancouver, March 7, 2007.
Provis, Chris. "Interests vs. Positions: A Critique of the Distinction." (1996) 12 Negotiation Journal 307.
Deborah Lynn Zutter, B.A., LL.B., LL.M. is a certified comprehensive lawyer/mediator with Family Mediation Canada. She brings over 25 years of experience to her mediation and collaborative law clients. Deb is active in the conflict resolution community as a speaker, trainer and author and she has served community in various roles. She is the Past Chair of the National ADR Section of the Canadian Bar Association, the ADR Task Force of the Law Society of British Columbia and the Mediation Development Association of British Columbia. Her book, Preparing for Mediation: A Dispute Resolution Guide is in its 2nd edition.
Certified Divorce Financial Analyst
Business Valuators / CPAs