Own the Problem, Create the Solution
Or, when "that's not my problem" doesn't cut it.
“We are too much accustomed to attribute to a single cause that which is the product of several, and the majority of our controversies come from that.”
— Marcus Aurelius
“That’s not my problem.”
Whenever I hear this phrase at mediation, I know we have some serious work to do as negotiators. The chances of two parties reaching a consensual agreement remain slim until the players understand that if one party has a problem, everyone has a problem.
“The plaintiff has $100,000 in outstanding medical bills, and what you’re offering doesn’t cover even half of that.”
“Not my problem,” says defense counsel.
“You’re asking the business owner to pay an amount he simply doesn’t have. He’s already filed for bankruptcy and lost his life savings.”
“That’s not our problem,” quips the plaintiff’s attorney.
“The injured worker is so angry about being fired and absolutely hates her boss. Her husband is very emotional, too, and they feel completely betrayed.”
You guessed it. “Too bad, but not our problem!”
“But Daaaaaad. I can’t take out the trash because I have too much homework.”
“That’s just not my . . .”
What IS your problem, anyway?
I understand why people say that issues like these aren’t their problems. I really do. If “feeling betrayed” isn’t directly compensable or actionable under the law, why should you care? If your client feels entitled to a certain amount of money at mediation, why should your negotiation be affected by the other side’s financial troubles?
In these situations, I try to help people understand that if one party has a problem, everyone has a problem around which you must negotiate. More precisely, if one party merely thinks it has a problem — even if the other party disagrees and doesn’t see it that way — you still have to deal with it if you want to settle your case. Anything that potentially stands between you and your goal of settlement, well, becomes squarely your problem.
Appreciating a problem — a real or perceived challenge or obstacle — from the other party’s perspective is a basic exercise in empathy, which itself is a critical element of negotiation mastery. The more you can see an element of the dispute as does your adversary, the better you can design strategies and tactics to move your negotiations closer to agreement. When you are aware of the concerns of the other party, you can then move to address them through your settlement proposals or otherwise through the mediation process. If you can offer a package that satisfies the other side’s primary concerns, then you vastly increase your chances of success.
Here’s a simplified example to express the point. Take the emotional employee and his spouse, trying to negotiate a settlement in a workplace injury case. The defense’s first response might be along the lines of, “The law doesn’t make us pay anything for their frustration, so even if I cared it’s simply not our problem.” But if the anger and resentment prevent them from settling the case you want to settle, isn’t it your problem? Of course it is.
Owning — and jointly solving — the redefined “problem.”
In an actual case I recently mediated, very similar to this example, an enlightened defense lawyer recognized that intense emotions on the other side, if not addressed at mediation, would prevent meaningful settlement discussions. Instead of dismissing the frustrations and anger of the decision-makers in the other room, this attorney instead acknowledged them in joint session through non-confrontational remarks, expressions of understanding, and refocusing on working together towards a constructive resolution.
In this case, ultimately, the parties reached a mediated settlement. And I know for a fact, based on extensive discussions in private caucuses (meeting with the parties separately), that the defense counsel’s demeanor and recognition of the parties’ joint ownership of potential settlement barriers was a significant factor in the process’ success.
Negotiation Takeaways
The strategic takeaways here, which you can use in a range of negotiation and conflict-resolution settings:
If any party has, or even thinks it has, a problem, then you all have a problem to address before you can reach a satisfactory mutual resolution.
To influence or persuade — to get someone to act (or not act) in a way you’d prefer — figure out the resistance points and aim to address them. What’s keeping the other person from doing what you’d like, and how can you make it easier for them? Thinking about the situation from the opposite of your own perspective, for example, helps with this critical part of the resolution process.
Recognize that one side’s obstacle is a shared challenge to own and overcome, collectively, if your goal is mutual agreement.