Interests motivate people; they are the silent movers behind the hubbub of positions. Your position is something you have decided upon. Your interests are what caused you to so decide.
~ Getting to Yes
If you’re like many experienced, or even new, mediators, you may read over the words “needs & interests” and think, Oh, I got this. This is easy. But from time to time, it is beneficial to return to the basics. That’s the premise of some of CCR’s continuing education events this summer, the first of which was Needs & Interests. Maia Buess, Programs Manager at CCR, Joe Gosselin, volunteer and trainer, and Kate Finch, CCR’s 2020 PILI summer intern, led the session on June 30, 2020. In case you missed it…
What are needs & interests?
Positions are what the parties want; needs and interests (we will use the words interchangeably here) are why the parties want those things. There is only one solution for a position, but there are usually a variety of ways to meet a need or interest. A non-exhaustive list of needs and interests would include appreciation, affiliation, autonomy, respect, status, and role.
Going toward the heat: emotions and needs and interests
Parties often know what they feel about something, but do not know what they need. Therefore, emotions, while not needs in and of themselves, may point to what a party needs. When we speak of “going toward the heat,” it means digging behind the emotions to see what’s driving them. Like needs and interests, it’s important to identify and vocalize emotions, but that is not the endgame. We, as mediators, identify and vocalize emotions in order to find what’s behind those emotions.
It’s Not Always About the Money: The Wrecked Truck Mediation
Money is often misconstrued as a need, especially by newer mediators. However, like emotions, money is a signpost, not a goal. A party may come into a mediation wanting the other party to pay for a car repair. Their position is that the other party should pay for the repair. But what is the need underlying that position? Why do they need the car repaired? Why do they need the other party to pay for it?
Joe Gosselin, a trainer and volunteer mediator with CCR, recalled in the presentation a court case he mediated between two sisters-in-law over a car repair. One of the women had wrecked the other’s truck. The plaintiff was suing for the value of the truck. The defendant couldn’t afford to pay anywhere near that amount.
After a bit of work with the parties, what ultimately came out was that the plaintiff did not need the money for the truck. Instead, the collective extended family had taken up a position in the dispute. There were people who were telling the plaintiff that she needed to hold the defendant accountable and there were family members saying that the defendant needed to take responsibility for her actions.
Because the money for the value of the truck was not the true need of the plaintiff, but instead a symbol of the needs of the extended family, the parties were able to arrive at a nominal sum that the defendant could pay over time. This satisfied the needs of both parties. The plaintiff was holding the defendant accountable. And the defendant was showing that she could take responsibility for her actions. This demonstrates the why of needs and interests. It’s an example of money not being a need and interest in and of itself, but a stand-in for those needs and interests.
How do you identify needs and interests?
Part of our role as mediators is to help parties see the order in chaos. As Joe Gosselin observed, one of the biggest challenges when mediators transition from the sims of training to real mediations out in the world is that real-life parties do not have their needs and interests on a sheet of paper like a role player just waiting for the mediator to ask the right question. Parties come into mediation with a disordered narrative. The mediator’s job is to help re-order the chaos. In order to properly identify needs and interests, it is important to do the following things:
Listen and explicitly identify.
Actively listening means explicitly identifying needs and interests as they emerge in the course of the mediation. In our daily lives we are good at archiving interpersonal information, but archiving and retrieving in the heat of the mediation is more difficult. So the real challenge becomes expressing the need and interest when it emerges. Summarizing is the active piece of listening--making sure you heard clearly and then succinctly (though not eloquently--more on this later) summarizing, and putting needs and interests up on a neon sign. “It sounds like you need X.” This can be clarifying for both parties.
Don’t stop at the first need and interest. Sometimes we can fall into the trap of pinning one need and interest to a party and believing that everything flows from that need or interest. Instead, we must continue to dig. This means you must ask the why questions behind the why questions until you get down to the most basic need and interest you can identify. (Note: digging deeper may not mean pursuing one party ad nauseum. It may involve taking a need and interest to the other party and having them respond.)
State the obvious.
One of the things we see with people in conflict is this mountain of assumptions that have built up over time to obscure and filter whatever the other party is actually saying. They cannot hear what the person across the table is saying to them. As the mediator, you have the advantage of asking questions and following up, without all the baggage of the other party. Sometimes we think, “Why would I even ask that, it’s completely obvious to everyone?” But, hearing a disinterested third party state something is different from hearing the neighbor who has been driving you crazy for seven years state the very same thing. On the training end, we mediators want everything to be a seamless transition complete with flowery descriptive narratives, but in reality, the priority is to make sure all parties have heard the most important points and enabling them to talk about them. It doesn’t have to be pretty. It just has to be coherent.
It’s also important to remember that you, as the mediator, are making assumptions throughout the entire mediation. It’s okay, you’re human. It’s just important to remain conscious. To question your own assumptions, don’t just roll with the thought that you know this party or you know this situation. Ask basic questions that challenge your own assumptions about the disordered narrative being presented. Because, as Maia Buess pointed out, as soon as we start making those assumptions we lose the opportunity to be the outsider, to offer a mirror.
I have the needs and interests. Now what do I do?
So, you have your needs and interests all lined up in a row. You have a coherent narrative around them that both parties are working from. What now?
Make them bite-sized
Boil down those needs and interests so that they are usable. It is much easier to develop options around a bite-sized idea. For example, frame the question as, “How does this affect your need for transportation?” as opposed to, “How does this affect your need to have a car so that you can get to work and make sure that you have job security so that you can continue to pay rent…. etc, etc.?”
Maintain focus on them
Don’t identify the needs and interests and then let them go. Remember, they are the theme of the mediation, not the episode. So keep them front and center as you develop options, always asking, “How does this meet your need for x, y, or z?”
Who are these even for?
The needs and interests have to become something the parties can talk about between or among themselves. Having parties understand the other parties’ needs and interests is not just about building empathy, it’s about strategy. Knowing what’s important to the other party allows a party to negotiate effectively.
Helping parties prioritize their needs and interests is vital. You can’t address the dozens of needs and interests a party might have, especially in the court model. Try to get parties to narrow down what is deal-breaking versus what has a little more give so that you can expand the pie. Sometimes, given the one-session nature of CCR mediations, prioritizing means not focusing on what’s most important but what can get done. Oftentimes this is not the last opportunity the parties will have to work on resolution, so it may be worthwhile to get agreement on some low-hanging fruit to build momentum toward resolution.
Needs and interests work is foundational in mediation. Working well with them takes practice. Half the battle is remembering to actively listen and explicitly identify needs and interests as you go, because doing so will ensure that everyone (you included!) is on the same page when it comes to negotiating some sort of resolution. And even if you don’t help parties reach that elusive agreement, you can be sure that the parties will walk away with a better understanding of the other party’s needs as well as their own. That, in its own way, is progress.