Parties in Dispute: Their Wants vs. Interests and Needs

{4:15 minutes to read}

In a mediation, after learning the basic facts and issues in dispute, the mediator will work to identify each party’s interests and needs; this is different than a party’s wants.” If a party has not already focused on her interests and needs, the mediator will help her do so. In this way, the mediator can help each party craft proposals that address her interests and needs and those of her adversary. The beginning of the road to settlement.

This is not an article about mediation. It is an article about the analysis that a party in a dispute should undertake with her attorney.

When a dispute arises, oftentimes before litigation has begun, a party will engage an attorney who must then, at the outset, learn the facts and applicable law, so that she can answer the typical first questions posed by the client: What is my likelihood of success? How much can I win or lose in litigation? And how much will it cost? And the answers—which will likely evolve over time as more information becomes available—will likely inform the client’s approach to the dispute. However, that is not where the analysis should end.

Clients typically have no difficulty identifying their “wants”; they want it all, especially if there is a personal or emotional element to the dispute. Full surrender and an apology from the other party! Those wants can be tempered or emboldened by the answers to the questions above.

However, many disputes and their resolution are not clear-cut, and the risks (and costs) are real. As clients understand this—many do, from the outset, while others will after time—they can realistically assess what the case is about and identify what their real interests and needs are.

For example:

  • Are they obtaining as much money as possible, or paying as little as possible (if anything)?
  • Are they having continued employment, or the ability to replace a terminated employee, without concern about its ramifications?
  • Are they about being relieved from the constraints of a non-compete agreement, or being able to enforce it?
  • Are they being able to legitimately and freely compete in the marketplace, or are they protecting one’s intellectual property rights?
  • And, if not already articulated by the other party, what are their real, legitimate interests and needs?

By going through this exercise, the parties can seize on opportunities to resolve a dispute sooner rather than later; sometimes, even before litigation is commenced.

There are, of course, other factors that go into resolving disputes, including, as described above, a party’s evaluation of the likelihood of success, what it stands to win or lose, and the cost of getting there; any disparity in the resources available to each of the parties; risk tolerance; and concerns about setting precedent—causing a “run on the bank.”

What to do if you (the client) find yourself in this situation?

Armed with this information, and assuming the other party is as prepared to fight as you are, identifying your interests and needs, and those of your adversary, will substantially increase your chances of reaching a resolution that is reasonably acceptable to each of you. And, hopefully, sooner rather than later.

So, after engaging your attorney and making sure that you have the warrior you want, and after your attorney joins you in falling in love with your case—after the honeymoon—make sure that you both go beyond knowing what you want; spend time identifying what your interests and needs are, and develop a strategy to achieve them.

If you have questions or comments about this process, please feel free to contact me.

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