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Uncovering interests

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Purpose

Needs, wishes and fears are at the root of disputes. They can be difficult for parties to share, yet are key for solving disputes. Facilitators can use different methods to find out what needs, wishes and fears (interests) are.

Solutions summary

Facilitators use the following processes to find out the interests of the parties:
  • Allow each party to tell their own version of events. In their story there will be emotions. There will be other indications of what they need, wish or would like to avoid. The facilitator can be keen on these and address these.
  • Summarize what you heard. "So .... happened and you wish/need ....? " "Did I understand you correctly that...?" This checks your understanding of what they meant. This ensures that both you and the parties know what is understood.
  • Rephrase answers into interests. So if an answer is “And then he started calling me names.” You can rephrase it as “He started calling you names and you want to be treated respectfully?”
  • Persevere: Keep asking questions until you know what all parties see as the causes of the problem and interests in the dispute.
  • Make sure your questions are clear and understandable.
  • Keep an overview of the information in the dispute map (See Tool 2c)
  • To keep records you can also use Dispute Clarification Form
  • Ask open questions. Here you can find lists of questions that can help you:
Asking about interests Asking about Feelings Asking about Desired OutcomesSometime it is difficult getting at the interests in a meeting with all the parties. Then you can use some other approaches:
  • Shuttle mediation: Have separate meetings with each party in turn. Explain what has happened in each meeting to each party.
  • Carry out some fact-finding activities (see Tool 7a)
  • Involve a third party who may be able to help (see Tool ==)

Local solution: Conference Comments

Votes at Conference: 16 Comments: Ask for third parties to help. Clarifying the disputes. Shuttle mediation. Map the power influence.
Relating to “facts” in the last point: Checking the fact. Find out the root problems. Clarify the problems.
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Added by: CONFERENCE

Local solution: Identification of the Problem

The lawyer shall listen to all the details of the dispute as described by the client. Usually, clients try to identify the problem and tell lawyer the problem as they perceive it. Once the background of the problem has been described by the client, the lawyer shall ask complementary questions in order to establish the scope of the problem: why and how this problem occured, what is the claim of the client, what are the main counter arguments of the opposite party, what does the law and practice prescribe in this situation, how does the opposite party perceives the problem etc. The questions shall be posed correctly in a simple and clear way in order to receive complete picture of the problem. The lawyer shall explain to the client that the information provided by him or her on the issue, shall be true and correct. This would enable the defense to select the right strategy and achieve effective solution to the problem. It shall also be highlighted that in case the issue reaches the court, judges will establish the facts and in case there is an incorrect infomation, this would work against the client. In addition, the lawyer shall review all the available documents and papers on the case in order to identify the problem correctly. Documents review may help to independently identify the problem, as the client most often presents facts and information from his or her perspective. All the details are important in this terms.Very often, clients tend to forget telling the lawyer the detail or showing him/her a reference or paper that might completely change the substance of the case. For example, when the land or any other property was purchased matters in property division disputes in cases of divorce. If the property was purchased before the marriage, then the other part does not receive a share if there is no child from this marriage. If the property was purchase after the marriage the wife shall be entitled to a share from this property even if there is no child in the family.  Example for utilization of the tool: A woman approched Praxis legal aid center with her legal problem related to property. She divorced from her husband and wanted to receive her share from their joint apartment. In the beginning she was claiming that her former husband did not want to share flat with her. In order to sort this problem out, Praxis lawyer suggested meeting with her former husband. She was totally against meeting with him. In the beginning, Praxis facilitator thought that this is related to the hostility over property sharing and that her former husband did not want to compromise on property issue. After meeting with husband, third party persons and relatives it was turned out that the woman worried about possible take over of their child by her former husband. So, the problem was related to the emotional issues rather than material – property related issue. In this case, the task before the facilitator also changed and he managed to bring her former husband to an agreement to write a written committment approved by the notary office on absence of his intention to take over their child.

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Added by: Praxis

Local solution: Clarifying the dispute

Nicolien Verkleij, judge at the court of The Hague and Head of the Dutch expert group for conflict resolution "Expertgroep Maatwerk Conflictoplossing" puts forward these 4 points;

  1. It is important that people can tell their personal version of the dispute (already on the site; I would add/change:)
    While exploring it is important to have each participant tell his own version of the dispute instead of having them react to each other’s story. So, after the first participant has told you what is bothering him (and you have been paraphrasing what he or she said):  “Now (name of participant nr. 2), please tell me your “version” of the dispute. I ask you not to react to the story of (participant nr. 1) yet. There will be time enough for you both to react to each other, but first I need to hear your own version of what is going on.”
  2. While exploring, open questions are most important. It can be very effective if the mediator (shortly) paraphrases the answer and “translates” the answer into a positive interest (like when the answer is: “And then he started calling me names”à “He started calling you names and you want to be treated respectfully?”). Advantages: people feel heard and understood and have the possibility to correct misunderstandings.
    When the answer contains a word that can be conceived in different ways, ask what the participant means by that word. Keep on asking questions if the answer is not clear to you and, if you think it is, check if you understood well.
  3. It is important to realise that the solution of a conflict involves separate phases. Talking about solutions (future) is only possible and useful if the participants have first experienced that they have been heard in their needs and interests. This should be clear to the mediator as well as to the participants: “First we will explore what is going on between the two of you and what is important for each of you (phase 1),  before we can start thinking about possible solutions of your dispute.”
    If you start talking about solutions too soon, parties will be resistant and fall back in reproaches; if that happens, it is a sign to go back to the previous phase and continue exploring the conflict and interests.
  4. Keep your neutrality by asking the same question to both (or all) participants.
    (Will you tell me …? answer Now I ask you the same question: will you tell me …? et cetera)


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Added by: TISCO

Local solution: clarifying the dispute

  1. What makes your problem a problem?
  2. Do you have any idea why the other party reacts in the way he/she has reacted? Can you explain yourself?
  3. What makes this problem – in your opinion- worth fighting for?
  4. What interest do you have in finding a solution?
  5. How does this conflict make you feel?
  6. Which influence does the conflict have in your daily life?
  7. What is –according to you- the problem?
  8. What are the most important issues that need to be discussed today? Which issues can be left out?
  9. What is your aim in this meeting?
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Added by: DAS

Local solution: Uncovering the root of the problem

The facilitators want to support parties to find a good solution.  In this process facilitators need to support parties to identify their aspirations, fears and their real problems. To understand clearly the root of problems and in order to find solution, mediators can use a number of questions as following:

  1. What do you think the problem of conflict?
  2. What do you think of this conflict?
  3. If any party has difficulty to speak, you can ask them why are you reluctant to speak about the problem?
  4. Where does this problem stating from?
  5. After that what problem could happened?
  6. What was the situation before the conflict happened?
  7. If the problem had not been resolved, what would happened?

Mediators need to create a matrix and the branches of conflict (conflict tree) to make sure that they understand the conflict very well. It can be an obstacle to resolving a conflict when parties only hold on to their position. It is important in mediation that parties get an understanding of the perspective of the other party and can reflect on their on own position. To help parties to find middle ground, the facilitator needs to know clearly the key interests of both parties. These interests can be uncovered with the use of the following questions.

  1. What do you think is your key interest in this conflict and what result would you like to see?
  2. Why do you think that this is important for you?
  3. Why do you think that it is correct?
  4. How can this problem be resolved?
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Added by: ADHOC

Evidence from practice

Asking open questions: facilitators in all countries ask open questions to uncover the problem. Facilitators in Cambodia have good experience with asking open questions. Gradual introduction: lawyers for Praxis in Azerbaijan ease into questions about interests by asking relaxing/welcoming questions that are not likely to be points of argument. They then build up to the needs and interests at the heart of the dispute. Making a map; Facilitators in Egypt reported to make a map of the problem to make sure that they have complete picture. Mediators from KBH create a map of the problem as the first step in the mediation process. This map includes all the relationships and events that have occurred in the dispute.

Evidence from handbooks

Asking good questions:

  • To elicit information and goals:
    • “Why are we here today?
    • “What happened?” “And then?”
  • To clarify:
    • “Can you explain further?
    • “Are you saying that…?”
    • “Is that what you meant?”
    • “What I hear you saying is…”
  • To identify interests:
    • “What are you most concerned about?”
    • What would you like to accomplish?”
    • To move past positions to the “real” interests: “Why is that important to you?”
    • “How does this solve the issue?”
    • “Why is that fair?”
  • To challenge assumptions:
    • “Why do you think he/she did that?”
    • “Have you asked him/her why he/she did that?
    • “Could there be another reason?”
  • To help parties generate options:
    • “How do you see this dispute being resolved?”
    • “Can you think of some ways we can address this issue?
    • “What can alleviate your concern about…?”
  • To establish objective valuation:
    • “How did you arrive at that number?”
    • “How could you and I explain that amount to the other party?”
    • To give parties a reality check: “How do you think the other party will react?”
    • “What do you think will happen when…?”
    • “Are you certain the judge will rule in your favor?”
  • To emphasize the benefits of agreement:
    • “What do you stand to gain from reaching an agreement?”
    • “How would you feel if you could walk away with an agreement?”

Mediation handbook UNDP Cambodia, 2010 (download here)

 

Evidence from literature

  • Sometimes, simply being allowed to tell their story completely is a great help to individuals. Pennebaker noted: 'The disclosure process itself...may be as important as any feedback the client receives'
Pennebaker, J.W. (1995) Emotion, Disclosure, and health: An Overview. In Egan, G. (2007) The Skilled Helper. Brooks/Cole:Belmont, CA
  • Accessing interests, and clarifying the dispute can avoid the most common contributors to the breakdown and failures in negotiation (failures and distortions in perceptions, cognition and communications)
Lewicki, R.J., Saunders, D.M., & Barry, B. (2003) 'Negotiation' New York: McGraw-Hill p.175
  • There are different styles of listening to people. Egan illustrates many of these in his book 'The skilled helper', but the two highlighted as most useful are:
  • Empathic Listening: Listening to clients' stories and their search for solutions
  • Focused listening: Experiences, thoughts, behaviours and affect.
Egan, G. (2007) The Skilled Helper. Brooks/Cole; Belmont CA 
  • Asking open questions
The 7 powers of questions; Secrets to successful communication in life and at work' Bonenkamp, H.J., Brenninkmeijer, A.F.M. (2001) Handboek mediation Leeds, D. (2000) Barendrecht, M and Kamminga, P. (2004) Effectief conflict oplossen

Uncovering interests

by admin on March 13, 2011

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