Page 32 - Becoming a Better Negotiator

Hearing the argument, the librarian comes over and learns that one party wants the window open for the fresh air and the other wants it closed to avoid the draft. Both people’s interests are satisfied when the librarian opens a different window. The illustration is useful and the point obvious once it is pointed out to us but how often are interests easily ascertained and separated from the stated positions. Fisher & Ury’s example also illustrates the point that to reach an agreement it is not necessary to find shared interests. It only requires finding complementary interests (actually non-complementary interests that do not conflict are sufficient).
In civil litigation, the parties’ positions are readily apparent. Pleading rules require the parties to state the factual and legal basis for their claims and affirmative defenses. In contrast, oftentimes parties are not consciously aware of their own underlying interests much less the interests of the opposing side. So, how do we go about determining the parties’ underlying interests — without addressing the respective interests a mediator is unlikely to be successful.
The best way to uncover underlying interests is to ask yourself and your opponent two questions: why and why not?
Fisher & Ury teach that the best way to uncover underlying interests is to ask yourself and your opponent
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