The parties to every mediation have interests that they are trying to satisfy. Whether those interests are substantive or procedural or more of a psychological nature (an apology, acknowledgement of wrong doing, respect etc.) there is always an underlying reason why they want what they want. Ascertaining those interests is the job of the mediator and many times can be uncovered by simply asking the party to explain why their position is important to them.

In contract to an interest, a position is probably best described as being the demand being made on the other party – what they want out of this claim. In the common case of a injury action that is almost always money, “I want $100,000 to settle my claim”. An interest though is deeper than that. An interest is the need or motivation justifying the position – the reason the party wants something. So, in the example of the personal injury action the injured party wants money (position) and the reason they want the money (interest) is to cover medical bills, catch up on their mortgage payments, pay college tuition, start a business etc. When parties negotiate only based on positions settlement can become very difficult and impasse often results. When the interests of the parties are considered negotiating a mutually acceptable result is far easier and results in a more satisfactory agreement.

After over 400 mediations I had finally stumbled upon why so many of those mediations often turned on issues that had nothing directly to do with the dispute – things that were important to the participants and were crucial to getting the case resolved but many times had little or nothing to do with the claim at hand. I had made that very comment in my initial orientation session with the parties more times that I can count, often with amazement: “why many times what is important to the parties has nothing to do with the claim we are mediating…”. And then it finally hit me: what I was experiencing and describing was the fundamental difference between positions and interests.

I have never claimed to be the brightest bulb on the tree and most mediators probably had this “Aha” moment far sooner than 400 plus mediations. Even though I wasn’t able to pigeon hole what I realized into the category of positions versus interests I am relieved that I at least recognized there was more going on behind the scenes of the cases I mediated.