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Interests and Options

The Interest-Based Option Generation Style may be viewed as the most empowering of, and dependent upon, the parties themselves for coming up with their own solutions. One way of thinking about this approach is to imagine a series of discussions (or frames) that you as mediator believe will have a good chance of assisting the parties themselves to discover what they perceive to be their fairest and most constructive agreement. The mediator earns permission to guide the parties through these discussion frames by first being responsive to whatever is going on for the parties. It is critical that the mediator meet the parties exactly where they are at, resolving that issue or energy, in order to gain permission to take the facilitative lead. A sample interest-based option generation approach might include the following discussion frames: 

Informed Consent as to Process
(the process is always negotiable and must be agreed to)

Sharing Perspectives
(separating relational issues from substantive issues; discuss both, just separately)

Remember the Common Ground
(common interests, interdependence and initial points of agreement)

Establish a Problem-Solving Agenda
(questions seeking solutions)

Identify Desired Information and Documentation

Clarify Desired Outcomes, Interests and Positive Intentions

Develop Options
(based upon outcomes, interests and positive intentions; separate from evaluation process)

Select from Options
(Evaluate based upon participant desires, criteria, standards, principle, rationale or rationalization -- and considering personal, procedural and substantive BATNAs)

Integration and Finalization
(Any possible improvement; drafting, review, revision, implementation)

Let's now focus on the "agreement facilitation machine" of this model, beginning with the identification of outcomes, interests and positive intentions to give the parties' agreement direction.

Identification of Outcomes, Interests and Positive Intentions

The mediator can not provide direction for the content of the parties' agreement. That would be a violation of the mediator's neutrality. Perhaps the most direct way to assist the parties to provide the needed direction for their agreement is to simply ask them: "On this issue, what did you want to create?" To the extent that the parties respond in positional (as opposed to experiential) terms, the mediator is wise to assist the parties to go beneath their positional demands to their underlying interests. Perhaps the easiest way to do this is to ask: "If you had your [positional outcome], what would be satisfied?" To the extent that the parties answer in terms of negative interests (I would avoid this or that) or respond with "revenge motives," the mediator can again ask, "Imagine that you were successful in [avoiding ______ or in getting your revenge], what would you then have?" Through such questioning, you can assist parties to recognize that even negative interests and revenge motives can be appreciated in terms of their underlying positive intentions, such as a desire for acknowledgment, appreciation, safety, security or respect. So reframed, the mediation effort can become a joint search for the mutually acceptable satisfaction of the parties' identified positive intentions. This reframing of the entire mediation effort can dramatically shift the parties' and mediator's experience of the mediation process.

Development of Options

Brainstorming possible solutions to satisfy the parties desired outcomes, underlying interests and positive intentions is central to the Interest-Based Option Generation Style. This is not to say that there should be brainstorming upon each and every issue. Rather, the parties are assisted to generate a full range of options on the most important substantive issues before them. The concept of brainstorming is that of avoiding premature evaluation by generating all possible solutions before beginning evaluation. When this is done, it is often the case that the ultimate solution is a "package deal," including components of a number of the generated possibilities.

Selection of Options

In contrast to Fisher and Ury's concept of selecting from among options based upon "objective criteria" (standards independent of the will of any individual party), I would like to suggest that mediating parties often make their option selection decisions based upon standards other than "objective criteria." What I offer is that mediating parties commonly make their option selection decisions based upon very subjective and idiosyncratic criteria, standards, principles, rationales or rationalizations. The key point to appreciate here is that parties in mediation will only move to agreement when they can come up with some reasoning to explain to themselves and to significant others why accepting a certain arrangement is a good decision for them. It is this ability to explain that makes the movement to agreement safe.

The mediator is also wise to appreciate that parties are always making their option selection decisions based upon consideration of their substantive, procedural and experiential BATNAs (perceived best alternative to reaching agreement in the present negotiation). In seeking to assist parties to select from among identified options, I will often ask them to first identify any "easy agreements," each option being considered in its own right. I will then commonly suggest that the parties consider any possible "package deals." This inquiry stimulates integrative thinking. This can be a good "homework" item. I may then ask the parties to "prioritize" the remaining items to see if any exchanges may be stimulated by better understanding that which is most important to each party.

Integration and Finalization

Prior to completing discussion of a topic or the mediation as a whole, I like to ask the question: "Can we do any better in a way that may be acceptable to you both (all)." If the answer is "yes," then I say then that:"we are not yet done working." If the answer is "no," I confirm: "then you are telling me that we have reached what you perceive to be the best possible mutually acceptable agreement?" With the parties' gentle head nods "yes," I conclude that we have in fact done our best.

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