Untangling Complex Business Disputes

It’s often the case that when two people or organizations try to resolve a dispute by determining who is right, they get stuck. That’s why so many disputes end up in court.

There is a better way to resolve your dispute: by hiring an expert mediator who focuses not on rights but on interests—the needs, desires, or concerns that underlie each side’s positions. If someone asks you why a dispute is important to you, your answer will reveal your interests.

As a simple illustration, imagine that two administrative assistants with adjoining desks disagree about whether the window behind them should be open or closed. One claims that she has the right to decide because she has seniority, while the other insists he should get his way because he conceded to the senior colleague in a disagreement about lighting. The office manager asks both to explain their preferences. The senior employee says that the draft from the open window gives her a stiff neck. Her colleague says that without fresh air, he gets sleepy. Suddenly, agreement is easy: the office manager opens a window in the adjoining storeroom, and the two assistants have fresh air with no draft. Acting as an interest-based mediator, the office manager probed for the interests underlying the assistants’ positions. When the positions of disputing parties cannot be reconciled, a focus on interests often will lead to a mutually satisfactory outcome.

But can a focus on interests be applied to complex business disputes? Yes. In fact, a mediator who initially knows little or nothing about the underlying technical issues often can resolve the most complex disputes. Why? In the first place, a good interest-based mediator will be a fast learner, capable of quickly picking up the technical knowledge necessary to discuss the problem. More important, an interest-based mediator doesn’t need to fully understand the technical aspects of a problem to assess why the dispute is important to each party and which solutions each party might accept. By beginning with this knowledge and eventually exchanging settlement proposals, the interest-based mediator can help parties resolve the most complex technical problems.

Adapted from “Beyond Blame: Choosing a Mediator,” by Stephen B. Goldberg (professor, Northwestern University), first published in the Negotiation newsletter, January 2006 and found online here


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