I often compare employment law cases to bitter divorces. Both require the deft touch of a mediator in order to get them resolved.
Fortunately, for our blog readers, we have another terrific guest blogger, Victoria Pynchon to talk about mediation. She blogs, but more importantly, she is a mediator and arbitrator for the Southern California ADR firm Judicate West.
For readers looking for more sage wisdom, there are a number of places on the web to find Victoria’s writings. She blogs at the Settle It Now Negotiation Blog and IP ADR Blog. She is also a columnist with fellow mediators Diane Levin, Stephanie West Allen and Gini Nelson for The Complete Lawyer.
If you haven’t checked out Victoria’s work, you’re missing out on some tremendous helpful insights into settlement and negotiation. I thank Victoria for submitting this and look for Part II of this column soon.
I was having a casual conversation about relationships over afternoon lattes recently when a young friend of mine offered his surprising view of martial life.
“Marriage,” he said, “is mostly about sharing chores.”
Because I’m married to this young man’s father, my response was a little despondent. “Then I’ll never catch up,” I said, “because your dad will always do more chores than I do.”
“He may do most of the chores around the house,” countered my wise and witty step-son, “but you do most of the emotional chores.”
Aside from cheering me up, my step-son’s comment demonstrated his inclination to problem solve in a principled and integrative manner. Because we are all more or less continually bargaining with family members over the division of household tasks, it occurred to me to use chores to describe the differences among positional, principled, distributive and integrative negotiation techniques.
If you are a litigator, position-based bargaining is in the marrow of your bones. At its simplest, positional bargaining requires the negotiator to convince his opponent that he is right about “facts” that entitle him to a remedy.
If we negotiated chores from a “rights and remedies” point of view, a conversation about making the bed in the morning between husband and wife might go like this.
Me: I’m the only one who ever makes the bed in the morning. You should at least do it when I leave the house before you get up.
Him: Why bother? We’re just going to mess it up again.
Me: You could say the same thing about the dishes.
Him: No, dishes are different. You have to wash them before you use them again. We don’t need to make the bed before we sleep in it again.
I could write pages about this argument but will save you my martial distress by cutting to the chase – this argument cannot be won because positional bargaining requires that one party be “right” or “almost right” and the other party be “wrong” or “probably wrong.” The way this problem is framed – the task doesn’t need to be done at all. It resists “positional” resolution because it is a matter of preferences rather than rights.
When a chore must be done, it lends itself more readily to resolution through principles of equity or fairness.
Me: I’ve stayed home waiting for workers to fix things around the house every day this week. It’s not fair that I’m always the one staying at home to wait for them.
Him: But you work at home. It doesn’t make any sense for me to leave work and come home to wait for the workers. It’s more cost- and time-efficient for you to do so.
The resolution to my complaint (which is really about something else – but more about that later) is “principled” because there are rational metrics to apply to the problem. The chore-choice is resolved by a time and effort metric — who will be the least inconvenienced by the required task. Note how the principled approach almost invariably includes justice (fairness) metrics, i.e., it’s fair that I stay home because I’m already here; don’t need to expend time traveling to meet the workers; and, can likely continue to get my work done while supervising them.
When mediators and negotiation gurus talk about “win-win” and interest-based or integrative solutions, they’re talking about dividing resources according to the needs, desires, and preferences of the parties. When they use terms like win-lose and distributive bargaining, they’re talking about seeing all tasks as fixed and capable of “distribution” solely by way of numeric percentages.
The entire “chore package” lends itself both to distributive and to integrative bargaining. The amount of time it takes to do household tasks, for instance, could be added together and then distributed among the parties in equal shares. This method of negotiating resolution is highly rational but lacks adjustment for the chore-doers’ needs, desires and preferences, all of which integrative or interest-based solutions address.
My husband, for instance, does not enjoy but also does not terribly mind doing any of the following chores: cooking for two; family finances; grocery shopping; gardening; car washing; and, running errands. I am not wild about but do not hate making the bed, changing the sheets; cooking for dinner parties; doing the dishes; planning and maintaining our social calendar; and, doing the laundry.
Like most couples, we haven’t sat down and divided our chores according to our interests or by principles of fairness. We have nevertheless fallen into a routine where each of us has naturally gravitated toward those chores that appeal to us the most or bother us the least. This natural, nearly unconscious manner of dividing work around the house is not distributive because we don’t experience this work as a single unified whole that must be divided between us.
What is burden for my husband – arranging flowers – is benefit to me. In fact, those “chores” that we enjoy generally aren’t seen to be chores at all, but rather as happy diversions. This is what my step-son meant when he reminded me that – to my husband – the daily maintenance of the general household happiness might be a chore, while it is a pleasure for me.
When and how to use distributive, integrative, interest-based, positional, and principled negotiation strategies to solve your most pressing employment problem – that of setting compensation and benefits for your employees and partners — will be the subject of my next guest post.