Trial or Therapy; Rights or
Interests?
Geoff Sharp
… a view from the coalface
2nd Asian Mediation Association Conference , Kuala Lumpur
Win/Win?
o My experience…
o 20% pure interests
o 40% pure $$
o 30% interest/position mix
o 10% impasse
o Mediators rehearse in poetry but practice in prose
o What do parties primarily want? They want $$
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Two Sorts of Litigated Case
Mediation?
o Multi layered disputes involving a mix of ‘things’;
$/relationship/emotional issues – usually call for an
interest based approach
o Single issue zero sum (often $) disputes – usually call
for a traditional positional bargaining approach
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Positional Bargaining
Begin with possible solutions. Parties trade offers
and counter offers until they hit upon a solution
which falls within their bargaining range
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Interest Bargaining
Begins with an exploration of the problem. Parties
educate each other about their needs or motivations
and jointly problem solve on how to meet those
needs
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A wins
Compromise
B wins
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Positional cf Interest Based
Bargaining
positions
o Preparation
 planning a triumph
o Initial contact
 goal is to gain the upper hand
o Exchanging information
 find out/reveal little
o Exchanging concessions
 few and small
o Exchanging commitments
 advantage/detriment
Prof. Richard Reuben, U of Missouri-Columbia
interests
o Preparation
 Focus on interests
o Initial contact
 Establish rapport/partnership
o Exchanging information
 Underlying interests/concerns
o Exchanging concessions
 Looking for trade-offs
o Exchanging commitments
 In exchange for satisfaction of
interest/concerns
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Obstacles to Interest-Based Bargaining
o Mutual mistrust
o Commercial mediation culture
o Fixed-pie thinking
Dwight Golann ‘Mediating Legal Disputes’
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How Can Mediators Promote Interest-Based
Bargaining?
1. Why?
2. Why not?
3. Hypothesis testing
o By careful questioning and enquiry;
Q: What are your interests here?
A: I’m interested in getting the most money I can!
o Not too early – after case analysis and evaluation (liability and
quantum)
o Ask specifically – listen for clues
o Suggest needs – give examples
o Each side to analyse the other’s interests
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Interests In Employment Disputes
o
o
o
o
o
o
o
o
o
o
o
o
Appreciation/Approval
Certainty
Change
Cooperation
Confidentiality
Consistency
Control/Power
Creativity
Economic security
Fairness
Forgiveness
Fulfillment
o
o
o
o
o
o
o
o
o
o
o
o
o
Honesty
Independence
Involvement
Justice
Leadership
Loyalty/Belonging
Meaningful Work
Money
Promotion/Status
Reputation/Face
Safety
Self esteem/Dignity
Trust
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Commercial Disputes
o Therapy;
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

Being able to talk
Being listened to
Being understood
Expressions of regret
Past and future relationship
Reputation/Face/Recovery
Confidentiality
Public Shaming
Vindication/Justice/Fairness
Political
o Interests;
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Money - high/low/within reserve
Precedent/Flow on
Internal credibility & accountability
Find out the facts
Future deals
Structure & timing of payment
Process
Power/Strength/Respect
Full Agreement
Move the case
Close the file
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