This blog posting is brought to us by Professor Sean Nolon at the University of Vermont who told this story to me at the WIP Conference…

A few days back, my two young boys, who are 5 and 7, gave me a great interaction to use in my Environmental Dispute Resolution course.  It builds on the much loved sibling-orange feud example many of us use to explain positions and interests.  But this interaction added a new twist that shed light on the relationship of power and rights in reaching agreements. 

 Here’s what happened: The kids just recently got a new music CD from the library and were listening to it in the car.  The 5 year old, who is not a great reader, opened the CD case and started looking at the lyrics.  When his older brother, who loves reading, realized there were lyrics, he reached over and snatched it away. This unilateral exertion of power what quickly met with an urgent appeal to rights – “Daddy! Not fair!”.  I then told him to give it back and apologize, which he did. 

 After a few moments of listening to Woody, the Toy Story puppet, singing away, I looked back and saw the younger one just staring at the lyrics but not turning the pages.  It appeared that he had gotten what he wanted but was still not satisfied.  Shortly after that, I heard my older son say: “If you let me have it back, I’ll read you the lyrics.” 

 Aha!

 They both had the same interest – to know the lyrics of the songs – but one’s use of power and the other’s appeal to rights did not satisfy them.  It was only after a stalemate that one was able to make a suggestion that was mutually beneficial. 

 I have seen a similar phenomenon in many environmental disputes – parties need each other to be satisfied but they have difficulty starting out with a collaborative orientation.  Instead, they try to use their power and rights until they reach a stalemate.  Only then are they willing to invest in a more interest-based approach.

 This does not happen all the time – either in my back seat or in environmental disputes – but it happens more than you would think. In many instances, adults and children seem to opt for what appears to be the easier strategy first, then, only after being stymied, do we attempt a collaborative approach.  The good news is that I have seen its instance reduced through conversations with my boys and through training of environmental disputants.

 I look forward to using this example as a way to help my law students become aware of this common mistake.