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Friday, September 17, 2021
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As noted in last week’s column, the field of mediation and conflict resolution provides a sort of modern mussar for best practices in dealing with interpersonal relationships and conflict management. It also provides the framework and tools that I use every day to help families, usually divorcing couples, reach amicable settlements together, in a problem solving approach, instead of enduring the high cost and trauma of an adversarial and court based litigation.

In light of this time of year in the Jewish calendar, when we are mindful of the destruction of the Temple and its causes according to the Sages, I hope to share some best practices and strategies in dealing with interpersonal disputes from my professional field of mediation and conflict resolution.

Following up on last week’s strategy, “Separating People From the Problem,” once two people are prepared not to make their dispute personal and are committed to working things out together, in a problem solving way, one of the most important tools to help resolve a conflict is the ability to distinguish positions, on one hand, with needs and interests, on the other.

A position is what someone wants to be the end result of a conflict. A need or interest is the underlying reason and motivation of why that person wants what they want. On the most basic level, a position is what someone wants. A need and interest is why they want it. Being able to distinguish between these two concepts can make all the difference in resolving a conflict.

Let’s look at an example from the Mideast international scene, which is actually used in the book “Getting to Yes,” whose authors were invited by former President Jimmy Carter to assist him in brokering a deal between Israel’s Menachem Begin and Egypt’s Anwar Sadat, which we know today as the Camp David Peace Treaty.

Both Israel and Egypt were “stuck” on a last position, each demanding that they would retain the Sinai Desert. “We want Sinai,” each side demanded. The team that helped broker the peace treaty did not stop there. They sought to understand what was underlying this position. Why was retaining Sinai so important? For Israel, the answer is obvious to us: Egypt, at that time, was Israel’s greatest military threat and Israel needed a buffer zone for security. For Egypt, the peace brokers explained, it was about saving face. Sadat was a new president and wanted to show his country (and maybe other Arab countries) what he could accomplish in peace that others could not accomplish in war.

So, while both sides wanted the Sinai Desert, approaching the conflict in a problem solving way, was there a way for Israel to satisfy its security needs AND the Egyptian president to satisfy his need to save face? The answer was in the affirmative, with a little creativity and willingness to shift away from each side’s initial position—and the rest is history.

This strategy of focusing on needs and interests instead of positions is not just for international disputes, but is used regularly for mundane and domestic disputes on a daily basis. Albert Einstein has been quoted to say, “Problems cannot be solved on the same level of awareness in which the problem was created.” Through supporting dialogue and productive communication, a mediator can help shift the level of understanding to find out what is really underlying each side’s position. I would invite the reader to consider a conflict that he or she was in personally. Can you think about what was the position versus the needs of each side?

A parenting dispute: How late will the parent allow their child to stay out at night?

Parents’ position: Not after midnight.

Child’s position: Any time s/he wants.

Parents’ interest: Safety of the child.

Child’s interest: Autonomy and/or social acceptance.

Problem Solving Question: Can there be a solution that addresses the safety of the child while also addressing the child’s need for autonomy?

In my work with divorcing couples, whether regarding parenting or financial issues, the same strategy is useful in helping families reach optimal resolutions. A common example is the question as to whether the marital residence should be sold upon the divorce. Often, the mother wants (= position) to keep the home for the children’s benefit (and her own), and the father wants (= position) to sell the home.

In a traditional adversarial negotiation, it is not uncommon for each attorney to advocate for extreme positions for his or client, hoping for some reasonable compromise that will be equally dissatisfying for each client. In mediation, in contrast, we seek to find a win-win solution that addresses the needs and concerns of all family members. The best way of doing that is to really explore what is important to both sides, which is to deepen the level of understanding as to what is underlying each side’s position.

In my experience, usually the mother wants to keep the home in order to provide stability and security for the children (and, often, herself), while the father is looking to sell the home in order to alleviate the financial pressure so that he too can afford a reasonable place to live. Freeing up funds from the home, though, is not just about money; it also helps the father find a more reasonable place to live where he too can have enough room to house the children in a comfortable place that the children will want to come to.

Looking at what is really important to both sides, it becomes clear that this is not about right or wrong, good or bad, but about two reasonable people who have reasonable needs for themselves and their children. And, when working in good faith, it often becomes clear that each side recognizes the value not only of their own need, but the need of the other as well.

Whether in interpersonal disputes or international ones, this basic ability to distinguish between positions versus needs and interests provides a framework to deepen the understanding of both sides and shift the conversation from an either/or and win-lose argument, to a joint problem solving discussion. Try it out and let me know how it goes!


Adam Berner specializes in mediation and collaborative family law, is the owner of the Berner Law & Mediation Group, with offices in Hackensack and Manhattan. As a leading practitioner in the family dispute resolution field for the past 25+ years he has served as president of the Family & Divorce Mediation Council of New York and Founding President of the New Jersey Collaborative Law Group. In addition to his private practice, Adam is a mediation trainer and adjunct professor at YU’s Cardozo School of Law, where he teaches mediation and collaborative law.

Additional information can be found at www.MediationOffices.com  or by calling at 201-836-0777.

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