A vital step in effective problem solving is to distinguish between positions and interests.
The next step is to prioritize the issues searching for commonalities, for interdependence between the parties involved. This sets the stage for step three: Creativity leading to a plan of action or agreement.
What Are Positions?
Positions are statements of what you will or will not do. What you can or cannot do. The Yes’s and No’s.
-I cannot sign that agreement.
-I will not go on that trip.
-I cannot pay that amount.
-I will not rent that apartment.
-I will not modernize this house.
-I will buy this car.
-I can afford this rent.
-I need two months to research.
-I need to make a stop.
These are the “yes’s” and “no’s.” I can or cannot. I will or will not.
What Are Interests?
The Positions are clear and now parties need to uncover their interests. One does this by asking questions: What? How? Why? Interests include needs, emotions, values, underlying motivations and aspirations.
Example: I cannot sign that agreement.
Response: What are the reasons you cannot sign that agreement?
EX: I cannot pay that amount.
Response: Why can you not pay that amount?
Response: My hours at my job were cut so I have reduced income?
EX: I will buy this car.
Response: What attracts you to purchase this car?
Once these questions are asked, parties really need to listen fully to the responses and summarize them. One may need to ask more questions or follow up questions.
Sometimes the first response reveals an interest but not the real underlying interests which means more questions.
Think of the metaphor of “peeling the onion” or “unnesting the dolls.” It should be noted that in a typical Nesting Dolls item, there are usually five dolls. So, maybe one needs to ask five questions to discover the underlying issues.
This is similar to the Five Why’s Theory. Sometimes one needs to ask “why” five times to discover what is really going on.
An excellent example of this process is the issue of pricing or dollar amount which is often the first position. Most of the time when questioned, parties will admit the the dollar amount is not the highest priority but instead, value and quality are the real issues.
(See Blog Entry on Questioning Skills: https://www.larryrayesq.com/post/questioning-skills-essential-for-effective-negotiation
How Do Parties Prioritize?
This step is challenging in two ways:
One, many parties have not thought about prioritization. This will require of each party reflection, research and discernment so they can effectively place issues in order.
Second, after each parties discerns their priorities there must be a trusting, open environment to set the stage for them to share such. Thus, each party must practice behaviors that create this environment. These include effective listening, summarizing, asking questions and ensuring all parties realize that their perspectives are valued, even if there is not agreement.
(See Blog on Liking and Trusting: https://www.larryrayesq.com/post/trust-must-be-earned-trust-is-fragile
How Do Parties Discover Commonalities or Interdependence?
This is a vital step. It is often easier if the issues and priorities are clearly posted on a board or screen. The parties can then step back, use their critical thinking skills to identify where the issues overlap. Once, they find this overlap-this linking, this interdependence, they realize even more so why there is a need to negotiate.
Interdependency is a mutual dependency situation characterized by interlocking goals. The structure of these interests determines the range of outcomes. If all goals can be achieved, it is integrative negotiation with mutual gains.
Setting the Stage for Creativity.
Most folks pride themselves on being creative but the research demonstrates that most lose their childlike creativity as they mature. So, for this stage to be successful, the creative atmosphere must be established.
Secondly, most folks instantly connect creativity with brainstorming so they open the door widely to suggestions, ideas and options. This can work but only in a step by step fashion:
-Solicit ideas. Value each idea. Do not evaluate. Do not question during this stage.
-Explain for further delineate each idea so all is understandable.
-Now, prioritize each idea and again look for commonalities. If there is agreement by all parties that a particular idea or ideas are workable, start the discussion there. Don’t discard the other ideas. They might be useful in the future or maybe part of an idea can be combined.
-Finally, integrate the ideas into a plan of action of agreement.
(Children are often willing to criticize and don’t mind asking stupid questions since they are not into “saving face.” As adults, they often lose those qualities.)
(See Blog entry on Creativity: https://www.larryrayesq.com/post/creativity-is-vital-for-effective-negotiation-mediation )
Creating a Plan of Action or Agreement.
Many parties rush through this stage because they are so excited that they have reached such. Don’t! Instead take the time to craft an agreement that will work for the long term (usually, this is desired). This is the time to ask, the “What if’s.”
-What if this deadline is not reach?
-What if these resources cannot be located.
In this way, when the parties leave, they will have the same understanding of the plan of action.
Goal and Steps:
So the goal in distinguishing between positions and interests is clear:
To discover the underlying issues leading to a better understanding leading to creative options and ultimately an enduring and creative agreement.
-Question to get to underlying issues.
-Prioritize the issues searching for commonalities and interdependence.
-General and test creative options.
-Craft an enduring agreement.
Exercise: This Exercise is often conducted in the Negotiation class at The George Washington University School of Law.
Issue: Installation of bullet proof glass in taxis in the District of Columbia between the drivers and passengers.
-NO, say the Taxi Drivers and the Taxi Unions.
-YES, say the DC Taxicab Commission.
Interests: The students than brainstorm to discover the underlying interests of each party. The result?
Interests of Taxi Drivers and Unions:
Not involved in decision-making
No respect for commission
Cost of installation
Time to install-cab out of service
Increase weight of cab-more gas
Appearance may intimidate passenger
Will tips be impaired-psychological barrier
Don’t want another regulation
Cleaning and vandalism of glass
Will the glass really make them safer?
Will the glass extend to the floor?
Interests of Taxi Commission:
-Safety of Taxi Drivers
-Safety of Tourists/Guests
-Public Perception of safety
-Influence of glass lobby?
-Low respect for taxi unions.
-Need to show actions.
-Avoid charges of discrimination.
-Need to reduce crime.
-Bullet proof glass is a trend in major cities.
Issues Priorities: Since this was a real life case, real life interviews were conducted with the taxi drivers to discern their priorities. On the surface, they stated Communication and Safety. Based on further probing questions, they admitted that compensation/tips and the feeling of self-employed; that is, independence, were the underlying top priorities.
Based on real life interviews of the Taxi Commission, they initially stated, Safety but again, after probing questions, they admitted that “taking action” was their underlying motive so they would be re-appointed and possibly run for political offices.
Finding Interdependence: The students then found it easy to find commonalities between the politically appointed Commission and the Taxi Drivers/Unions.
-Costs and reducing Liability.
Creating a Plan of Action: I all parties had been in the problem solving mood, they could have easily crafted a creative plan of action. Possibly, the city could have paid for the glass installation. Possibly, the glass could have been designed to promote communication. All stakeholders could have touted progress.
Other Position versus Interests Examples:
District of Columbia Street Cleaning: DC has not had street cleaning for 25 years and then they started it. The DC Street Cleaners indicated that they had chosen the Dupont neighborhood to be the first experiment. They also said that they needed to clean weekly so the residents get into the habit of moving their cars from side to side. This was based on the experiences of other cities. This seemed interesting.
One of the Neighborhood Commissioners got curious and discovered the underlying interest was not street cleaning but giving parking tickets. DC Street Cleaning had done their own research and found out the Dupont residents pay their tickets more loyally than any other neighborhood. So, a revelation?
Position-Many Jurisdictions Require Voter ID: Why? On the surface, the politicians state that their interest is decreasing voter fraud.
But many believe the underlying interest is, voter suppression.
Example: Yahoo CEO Marissa Mayer 2013 position: No more telecommuting.
What’s the interest? Mayer stated that she wanted “One Yahoo” and that many ideas emanate from being side by side in the hallways, etc.
Many wondered about the real underlying interest. Is it to make her mark? Does she merely want to go against the trend? Does she want to test who is really serious about their jobs?
Some recent research indicates that telecommuting and increased productivity may be nuanced. It might indicate that those who telecommute 20% of less might be more productive than not.
Example: Opposition to Red Light (Stop) Cameras: Many take the position of, Yes; and others, No. Politicians usually state the reason is safety, but many wonder if the interest is really raising revenue. So what is the real interest? The research varies and so one believes whichever research agrees with their position.
Red Light Cameras (Red Light Safety Cameras) Distinguishing between Interests and Positions.
Positions: Some say YES and others say NO.
Interests of the Ones who say Yes:
-Enforcement of law
-Reduces angle crashes
-Encourages safe driving
-Spill over safety to other intersections
-System pays for itself
Interests of those who say NO:
-Tickets mailed to registered car
-Owner-may not be driver
-Many tickets give to illegal right
-Are illegal turns-not as serious
-This is all about finances.
-Increases rear-end crashes
Example: Back Car Window Stickers/Decals/Hangers:
Most, most likely have not given much thought to the car back window. There was a trend for awhile of having dangling signs in the rear window saying,
-My kid is an A student.
-My kid is on the honor role.
-My kid is in the Scouts.
Most seemed mildly amused by this publicity.
Then some playful folks began putting other dangles or stickers saying,
-What the f-ck.
Several state legislators found these messages objectionable and began offering bills to ban such stickers. The proposed bills limited nontransparent stickers to 7-15 square inches of the back window farthest from the driver. That was their position. Their stated interest: Safety.
But, was it really?
Example: Sagging Pants Legislative Laws and Proposals.
During the past 20 years, many conservative legislators, mostly in the South began introducing and passing laws against “sagging pants.” They even criminalized the situation along with up to $1000 fines.
So the Position: No sagging pants 3 inches below the waist. One proposed law even referred to “ilevin” which is the widest bone of the pelvis.
What is the Interests? Some legislators declare that they want the youngsters to dress according to standards so that they can get good jobs in the future. Some say it is all about “proper dress.”
But is it? Some think that these legislators are connecting sagging pants to the prison culture, the gang culture or the drug culture. Some, go so far as saying the interest may be racially motivated animus.
Whatever the interest, many of these laws are being repealed due to the disproportionate impact on Black and Brown Male Teenagers, sometimes even giving them a criminal record.
It should also be noted that none of the laws talk about bare skin or possibly one with saggy pants could be wearing a speedo under them-perfectly legal?
Example: Training Institute and Number of Continuing Education Hours (CEU):
Sharon offers training at the Institute. The Institute demands 7 hours of instruction per day to offer CEU’s, 9-5 with an hour for lunch. That is their position. Sharon called them indicating that all 20 of the trainees wanted to take the training on Friday from 8-4AM with an hour lunch so they could get “on the road” driving an hour earlier. This time equaled 7 hours.
The training director said, No! For CLE, one must train for 7 hours per day. The training is advertise from 9-5PM and that is how it must stay.
What is the underlying interest? Most likely Control.
Case Study: Hannah and Emma
Hannah and Emma are sisters and own a successful printing and copying business. They are having troubles. The sisters are going in different directions. Emma is more family oriented and Hannah is focusing on her health. On the side the business also supports a charity for children.
-Emma is tired and wants out of the partnership.
-She wants Hannah to buy her out.
-Having a work situation conducive to her child-care needs.
-Getting capital for the Husband’s new business.
-Getting a fair “buy-out” for her investment.
-Getting this resolved for the sake of the family.
-She wants recognition that the business was her idea and that because of Hannah’s health, Emma has devoted more than 50% to the business.
-She loves her sister, wants to help her and sustain their relationship.
-She cannot afford to buy Hannah out.
-She wants the partnership to continue.
-Because of her health, she cannot run the business on her own.
-Hannah needs a job and this is the only one she can do.
-Hannah needs to financially support herself including health insurance.
-Having a work situation conducive to her health needs.
-Continuing a successful business.
-Getting this resolved for the sake of the family.
-Hannah wants recognition that she has brought in most of the clients.
-Hannah loves her sister and wants to retain the relationship.
Interdependence of Hanna’s and Emma’s Issues.
After Hannah and Emma identified their issues they easily discerned the commonalities:
-They both want a Sisterly loving relationship.
-They both want Hannah to have health insurance and to take care of Hannah’s depression.
-They both want the charity to be sustained.
-They both want a fair financial arrangement accommodating both of their different directions.
-They both want this situation resolved.
Cite: This case study was created by Internationally Acclaimed Mediator and Executive Coach Melinda Ostermeyer. She was the director of the Houston Justice Center and the DC Multi-Door Dispute Resolution Center.
Case Study: The PowerScreen Negotiation aka HackerStar .
Hacker and Star started a business together ten years ago. They were drinking buddies and shared lots of ideas. Hacker is a program developer and Star is a dentist. Hacker provides expertise; Star provides the revenue. They fell out of communication and began having many fights and issues.
One day, each of them took the positions: Close the Business or a New Partnership Agreement.
They each hired representatives who assisted them in identifying the interests:
-Freedom to develop
-Recognition of expertise
-Recognition of 50/50 partnership.
-ROI (return on investment)
-Respect as an investor.
-Open communication, no secrets about developing new programs.
-Easy ways to resolve disputes as they arise.
Once these interests were identified, both Hacker and Star realized their common interests-their independence. Because of this, they crafted a creative new partnership agreement bringing in a third partner, satisfying all interests and including a dispute resolution clause.
This case study was created by the Harvard Law School Program on Negotiation.
Distinguishing between positions and interests is a vital process in decision-making, problem solving and negotiation. First, identify positions which are usually Yes’s and No’s. Then probe to discern what is underlying those positions. Sometimes the interests initially stated are only surface so probing deeper might be necessary. After all the interests are identified and explained including being written on a board or screen, the next step is finding commonalities or interdependence. All of this opens the door to creativity and in the ideal, crafting an agreement that meets all of the interests.
Essentials of Negotiation, 6th Edition, Roy Lewicki, The Ohio State School of Business. (This textbook is used by Professor Larry Ray in his Negotiation course at The George Washington University School of Law).
Getting to Yes by Roger Fisher et al. This book was first published in the 1980’s. There are many reasons to read this basic book. One reason is that so many attorneys and negotiators are following the basic principles of this book. These principles include,
-Separating the people from the problem.
-Distinguishing between interests and positions.
· Getting to Yes: Negotiating Agreement Without Giving In
· by Penguin Books
How to Win Friends and Influence Enemies by Dale Carnegie. This was first published in 1936 and republished each 5 year period. The principles still hold true. One principle is negotiators need to exhibit behaviors to get people to “like” them so they are more persuadable.
Malcolm Gladwell, Talking to Strangers.
Malcolm Gladwell, Outliers-Secret to Success
Malcolm Gladwell, Tipping Point
David and Goliath, Malcolm Gladwell
Apollo’s Arrow, Nicholas Christakis
Emotional Intelligence, Travis Bradberry
Seagull Manager, Travis Bradberry