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How many times have you heard the phrase, "That's not fair?" When one of my teenage children says it, it can mean many different things: - "I'm not getting everything I want." - "I'm not getting exactly the same thing as my sister." - "You're treating me differently than you treat my brother." - "You're doing something that will embarrass me in front of my friends." - "I'm busy right now doing something I'd rather do. Ask again tomorrow." - "You're just wrong." - "I deserve more." - "You're overstepping your bounds by even bringing that subject up." And that's just the start of it. When we are in any kind of discussion or negotiation, we have to be sensitive to the signs that one side or the other perceives unfairness. Usually that perception shows itself as one party getting angry and digging in, with overtones of casting moral judgment on the other. People do not like giving in to unfair requests. It adds an emotional edge, and it makes agreement harder to reach. At the end of the day, unfairness means, "I don't see you as playing by The Rules," where "The Rules" means "My Rules." "My Rules" are defined by my value system, which is informed by my upbringing, culture, professional background and experience. "Your Rules," which are informed by your upbringing, culture, professional background and experience, are then by definition wrong. I am not about to change "My Rules," although if they line up well enough with "Your Rules" we can have a conversation. In order to make the conversation productive, though, our views of our respective bargaining positions have to line up, too. For instance, in litigation, if one person thinks the law and facts are on her side, then she will think she is being fair and the other party is not. The other party may have a mirror-image view of the law, facts and fairness. Often enough, through a series of cognitive biases, neither is able to hear the other. People sometimes have difficulty coming to understand that the other person's point of view may have inherent internal logic - or be able to see that if just a few facts were changed, one's own position might not be quite so strong. If parties are having difficulty aligning their conversations, a mediator can play the role of translator. By asking the right questions to draw out an explanation and subtly reframing the responses, a mediator can help reduce the emotional force of the push-back against unfairness, while at the same time conveying the thought processes of the parties to each other. He can also reduce the power of dug-in positions that seem irrational to the other side by using techniques to re-focus the conversation on resolution instead of motives or blame. That is not to say all will then be right with the world that each party will not still feel completely in the right and believe that the other party is morally challenged, but it can remove a few barriers to further discussions. It often helps parties negotiate better if they can sidestep their sense of unfairness Jeffrey Fink (http://www.jfinklawadr.com) is an attorney in Wellesley, Massachusetts who helps businesses and families resolve disputes as a mediator, arbitrator, settlement counsel and collaborative attorney.
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