Interest-based processes

This is an approach that tries to reconcile or find a solution that meets the interests of the parties. Interests refer to the parties' wants, needs, hopes, and fears. Interest-based approaches tend to be more consensual, and succeed when both parties get enough of their interests met to agree on a solution.

Type of Outcome: Win/Win

Process Examples: Most types of negotiation, mediation, joint problem solving, mutual gains bargaining, and brainstorming

Rights-based processes

This is an approach that is characterized by parties asserting or focusing on the superiority of one party's rights over the rights of the other parties. Rights come from many sources, including laws, statutes, conventions, past practices, policies, contracts, etc. Rights-based processes tend to be adversarial and focus on promoting one's own rights while minimizing and delegitimizing the other party's rights.

Type of Outcome: Win/Lose (sometimes Lose/Lose)

Process Examples: Litigation, arbitration, adjudication, tribunal decision, neutral evaluation, some types of negotiation, and formal investigation

Power-based processes

This approach is characterized by parties bringing to bear all the resources they have at their disposal against the other party in an attempt to win. Typically, power-based processes are highly adversarial and are sometimes applied in spite of the rights of the parties.

Type of Outcome: Lose/Lose (sometimes Win/Lose)

Process Examples: Threats, intimidation, physical force or violence, strikes or lockouts, unilateral decision-making, some types of negotiation, “self-help,” and voting.

It should be noted that rights- and power-based processes, although separate and distinguishable types of processes, often operate together in conflict because it's often the rights-based framework that gives power to one party in a given situation. For example, many governments have created rights-based laws that grant police the power to arrest and incarcerate individuals. In addition, rights- and power-based processes share some traits in that both are adversarial in nature, whereas interest-based processes are collaborative in nature.

The simplest format for the Interests/Rights/Power model is the Stairway (Figure 4.1).

The Stairway model indicates that as parties move up the Stairway with the type of process they are using to resolve a conflict, two things happen:

1. Costs go up. Costs, in relation to conflict, are an important consideration. The most obvious costs of conflict are time and money, but when dealing with conflict, a whole additional range of costs will surface. Some of the other costs that are incurred as the conflict moves up the stairway include:
   • Loss of productivity
   • Loss of focus
   • Draining of emotional energy

     

   • Stress
   • Strained or terminated relationships
   • Loss of productivity
   • Lower morale
   • Damaged reputations

   Consider this wide range of costs by comparing a few days negotiating the resolution to a contract dispute or an employment matter to the costs involved in taking the same matter to litigation or a human rights tribunal that could run months or years. The full range of costs goes up dramatically when engaging in a rights-based process. Compare that, finally, to the same contract or employment dispute when it escalates to power, where one party to the failed contract tries to destroy the reputation of another party in the community or engages in theft or sabotage against their employer because of the dispute. Costs can go up even further.

2. Control goes down. When using interest-based processes, the parties themselves control the nature, direction, and outcome of the negotiations. When the process escalates to rights-based processes, the parties have turned the final decision over to a third party, whether a judge, an arbitrator, or a tribunal. And because rights-based processes typically rule only on the rights-based aspects of the dispute, many times the final decision handed down does not meet all of the interests of either party, including the “winning” party. This can be seen when both parties to a lawsuit appeal the judge's decision. When the dispute turns to power-based processes, the only control left to each party is control over how much of their power they choose to use against the other party. In many situations where power is used against the other party, it often results in rapid escalation in a “tit-for-tat” exchange, leaving both parties feeling that they have no choice but to respond in kind. The situation rapidly spirals out of the control of both parties.

The assessment that the practitioner makes about what kind of process or processes the parties are using becomes a critical one when looking at the dynamics of the processes involved. The type of process being used, in other words, will greatly influence the outcomes the parties get.

It is important to note that the model in no way judges the use of rights- or power-based processes as being negative or wrong. The model simply notes that rights- and power-based processes are more costly (see the list of costs on the previous page) than interest-based approaches. The following provides some detail on the strengths and weaknesses of each approach:

Strengths and Weaknesses of Interests, Rights, and Power Processes

Default to using interest-based processes first

There are very few situations where rights or power should be used as a first choice.³ Interest-based processes such as problem solving, negotiation, and mediation are inexpensive enough and successful enough that there should be a presumption of using these interest-based processes first. In other words, the default approach should be interest-based processes, moving to rights-based only if the interest-based fails, and moving to power-based only if the rights-based approach fails.

Use the lowest-cost rights or power process

Within each step, there are processes that will cost more or cost less. For example, arbitration typically costs less in time and money than litigation, even though both are rights-based processes. Even better, neutral evaluation costs less in time and money than either. In political processes (which are mostly power based), allowing people to vote for their political leaders every five years costs less than having a civil war every five years.

Loop back to interests

If you need to use rights- and/or power-based processes, or if the situation has escalated to other parties using rights- or power-based processes, look for opportunities to loop back down the Stairway to interests wherever possible.

This is a key principle, and it says that if you need to file a lawsuit to protect your rights, do so; then keep looking for opportunities to negotiate a resolution. If you ground your son for breaking a curfew, look for ways in the future to negotiate a solution that works better for both of you; willing commitment is far better in most cases than imposed punishment. The concept of looping back is an important one, and one that we don't often think about when in the midst of conflict. Often, we are more focused on how we can consolidate our power and escalate the conflict in an effort to win. This rarely succeeds or meets our interests without incurring significant costs to us along the way.

By understanding the outcomes and consequences of the different types of processes, this model directs practitioners to guide the parties toward the process that will accomplish what they want at the lowest cost for those involved.

Default to using interest-based processes first

Because the first strategy is to default to interest-based processes, Sally (as the practitioner in this example) could sit down with Bob to understand and discuss both of their interests. This exchange would avoid, for the moment, the power-based issues of insubordination or the rights-based issues of grievances and focus on what Bob and Sally both want. To best help the two of them identify interests, the practitioner could review Model #2: The Triangle of Satisfaction and work with the common interests listed there. Although there are a number of competing interests, there is also a full range of common interests for the parties to work with at this level. Sally could take the same approach with Bob regarding the harassment complaint, looking at what Bob really wants and how they might resolve it with Diane consensually.

Go to rights only if interest-based processes fail

If one party is determined to focus on their own demands to the exclusion of the other party, the practitioner can focus for a while on the rights of the parties in the situation. For example, if Bob is adamant that he has a “right” to the promotion, Sally can help Bob explore those rights from the relative safety of this interest-based process of negotiation. Sally can explore how Bob is viewing his rights, why the job competition process exists, why the union feels the process is fair, what rights Sally and Diane have, what basis he has for saying he has more rights than Diane or the union in this situation, etc. This is a low-cost way of exploring parties' rights, involving much lower costs than constantly refiling grievances or other complaints.⁴

Go to power only if rights-based processes fail

Further, the practitioner could explore with Bob⁵ what power he has in the situation and what power the other party has. For example, the practitioner could use the idea of BATNA (Best Alternative to a Negotiated Agreement) and explore Bob's outcomes if he stays on power (the right to grieve, which the union has made clear has no merit, or work refusal and poor performance, which may result in dismissal), or if the status quo remains with no one getting what they want.

Loop back to interests

Finally, the practitioner can help Bob loop back to interests by helping Bob compare his rights and power options to what can be accomplished collaboratively—that is, focusing on what he wants in the future and how Sally can help him, and what Sally wants and how he can help Sally. In this way, the parties can truly assess what they can accomplish jointly on an interest-based level and compare that to what an adversarial contest of their rights and their power looks like.

Final thoughts on the Stairway model

The Stairway model of Interests/Rights/Power is a foundational and seminal model in the conflict resolution field. It frames virtually every type of process that parties use to resolve or address conflict and does so in a straightforward and elegant way. It is also a model that is both simple enough and useful enough that it can be taught to parties during the negotiation process itself to help everyone frame the choices that they are making, along with the dynamics or outcomes that may flow from those choices.

Case Study: The Greek Social Club

A tenant moved into an apartment next to a Greek social club that had been there for a number of years. The social club catered to the Greek community and held numerous functions at the club, mostly on weekends but sometimes on weekday nights.

Not long after moving in, the tenant went to the club during a party on a Friday night to talk to the manager about the noise. It was just after 10:00 p.m. The manager listened to the tenant's complaint but told him that the party would continue because the city's noise bylaw allowed them to make noise until 1:00 a.m. on weekends. The tenant tried to explain that he worked early shifts and asked if the music could be turned down. Again, the manager refused, quoting the bylaw. The tenant left angry and immediately phoned the police. The police arrived at his apartment about half an hour later, listened to the story, and told him that the bylaw indeed allowed noise until 1:00 a.m. but offered to talk to the club manager anyway. When the police showed up the manager got extremely angry that the police had been called, and after the police left, turned the music volume up louder. The tenant again called police, who visited once more but could do nothing.

Over the next few months the tenant regularly called the police to complain about the noise and on a few occasions managed to get a social event shut down on the weekdays, causing the club a significant headache. In return, empty bottles and the odd broken bottle turned up on the tenant's porch, making the tenant feel like he was being targeted. The tenant applied for an injunction to prevent all members of the club from coming near his apartment, but without proof of who had broken the bottles, was not successful. The tenant then wrote a letter to the liquor control board requesting that the club's license to serve alcohol be suspended because of the negative impact the club was having on the neighborhood. His complaint was accepted and assigned to an investigator. The club served notice on the tenant that they were filing a lawsuit to stop his harassment of the club.

The Stairway model diagnosis and worksheet: The Greek Social Club

1. Assess the type of processes used so far by the parties and the outcomes that they've been getting.

The Stairway model strategic direction: The Greek Social Club

2. Develop options for interest-based processes that may help the parties:

   Interest-based options require looking at what both parties want and need and focusing on the constructive interests the parties have.⁶ By looking at what each party really wants (as opposed to the newly created interests of revenge and punishing each other), the parties can better look for solutions that will actually solve the problem.

   The most obvious process for doing this would be finding a way for the two parties to sit down and negotiate, to listen to and understand what each of them really needs out of this. Either party could initiate this. Should that not work, a second option would be some form of mediation. By asking a third party to organize and run the negotiation, it might make it easier for each party to feel safe in attending.⁷

3. Identify low-cost rights-based processes the parties should consider if interest-based approaches fail:

   The parties are headed for high-cost rights-based processes such as court or regulatory bodies like the liquor control board. If negotiation fails, a lower-cost rights-based option might be to get their local city councilor involved (or another person whom both parties would respect), have him or her review the situation, and then tell both parties what's reasonable. This might temper the anger that both parties are feeling and help them rethink their point of view.

4. Identify low-cost power-based processes the parties should consider if rights-based processes should fail:

   An option for the tenant with a lower cost than repeatedly calling police might be to start involving neighbors to bring community pressure to bear on the social club. The social club, on the other hand, could open its doors to the community more, put on a function to which the entire street is invited in an effort to build support. Although both these approaches are risky (as all power-based processes are) in that they risk dividing the whole street and escalating the situation, they are probably better and lower cost than constant police calls and the “self-help” approach of broken bottles on the tenant's porch, which could easily lead to a violent confrontation between the tenant and other social club members.

5. Identify opportunities to loop back:

   This is a key step. Parties should look for ways to get back to the interest-based level by finding a way to meet and make the relationship actually work for both of them. They could do this by either party extending an olive branch and an offer to meet and talk. They could ask a third party, such as their city councilor or a local community figure, to sit down with them and facilitate a discussion. They could each appoint a representative (a lawyer, a friend, etc.) to negotiate on their behalf with instructions to find a way to meet both parties' important interests. Any of these strategies would shift the parties away from the aggressive, adversarial approach they have both been using (with little success) and focus them on actually solving the problem.

Epilogue of the case study

The police, fed up with being called about the matter, referred the case to a community mediation organization, which contacted both parties and asked if they would participate in mediation to try to resolve these issues. Reluctantly, both parties agreed.

After four hours of mediation (which included extensive venting by both parties and a clear identification of what each reasonably needed to make this work), an agreement to minimize the problems was reached, along with a commitment to try it out for three months to see if it helped and to meet again if either party still had concerns. Over the course of a year and three additional meetings, the friction between the parties stopped and all formal complaints were withdrawn. In addition, the tenant received a standing offer to drop by any of the club's social functions and join the party, an invitation the tenant accepted a couple of times.