The interests are often not easily bundled into a list, or clearly called out, but are often lurking below the surface. The mediator/neutral and the principal party will usually engage in a dialogue or an “appreciative inquiry” of understanding why the client is taking a certain view or position on an issue in order to get to the underlying interests.
One instructive example involved an electric utility responsible for providing transmission and distribution of natural gas into a major urban area. The utility provided its customers in this million plus metropolitan area with natural gas served from this one major pipeline. In essence every major hospital, university, business, governmental agency, etc., that was using natural gas for heat and/or electricity was reliant on this pipeline.
The problem facing the parties was that the gas company who owned and maintained the pipeline was required under federal pipeline safety laws to ensure that the pipe was free of debris or other substances.
This law was closely monitored after 9-11 and an increased watch of the nation’s infrastructure. This required what is known as “Pigging” the system or sending a remote controlled camera through the pipeline to check flow, blockage, etc. In some circumstances the pigging device can get stuck and shut down gas flow altogether that would curtail gas flow on the line and essentially shut down the heat and a significant amount of the electrical generation for this major urban area.
The interests boiled down to on one hand the pipeline company was required to inspect and ensure the safety of the line or it could lose its certification to operate; and the utility had the health and safety requirements of its customers at the fore by ensuring natural gas and/or electricity was available. The solution which will be addressed in the next writing focused on how to meet both sets of interests. This almost always the case in reaching a durable agreement that the parties in the end determine they can live with.
Getting to the place of understanding and recognition so each party knows that they are being heard is critical to getting to yes. This is an aspect of the various stages that cannot be overstepped – – nor is it a touchy feel-y stage that some principals and counsel fear. It is a pragmatic dialogue that produces a deep recognition of the problems and concerns gripping each party.
As a mediator I feel responsible when this is not achieved, and when it is I am happy to give full credit to counsel and their clients in doing the necessary work to get to an agreement.