Who Is Gonna Build the Fence?

In  a recent blog, Tammy Lenski discusses, “ 4 Handy Principles for Deciding When You Can’t Agree”. Considering the present national situation, I found the blog very timely and cannot resist sharing.

But, to take it out of politics, let’s use an example. Suppose Jack and Jill are neighbors. Jill has a dog that keeps getting loose, runs into Jack’s yard and tears up his flower beds and ruins his grass. Despite Jack’s repeated attempts at being nice and politely asking Jill to prevent the dog from getting loose again, Jill ignores his requests and simply apologizes each time it happens.

So, one day Jack approaches Jill with the idea that a fence should be built between their yards and that Jill should pay for it. Jill says “No!” and is adamant about it, telling Jack that if he wants a fence – he should build it and pay for it.  Neither party budges from their position.

So, how to resolve this? According to Ms. Lenski, the first question to ask is “Who cares most?”  There is usually one person who cares the most in any heated exchange and what typically happens is that ““… whoever cares most if the discussion goes long, wins.” “(Id.)  Is it Jack or Jill who cares most about the fence?

The second question is “Whose reputation will be on the line?” According to Ms. Lenski, “[t]his principle gives decision-making power to the person whose job, authority, image or standing…will be most jeopardized if something goes wrong.” (Id.) This person can be either a party to the agreement or a third person who is a stakeholder. The flip side of this question is “Who stands to lose the most if the decision goes bad?” (Id.)  Is it Jack’s or Jill’s reputation that is at stake here? If the fence does not get built at the expense of Jill, is it Jack or Jill who stands to lose the most? Who will look the most foolish?

A third question to ask is “What you would tell a best friend to do?”. That is, suppose you came to Jack with a dispute like the one he is having with Jill. What would  Jack tell you to do ? Putting the issue into this context helps clarify the issues and helps us focus on the forest rather than getting stuck in the trees. It allows us to step back and take the broad view of the issue rather than focusing on one-minute aspect of it. And, obviously, when  Jack answers the question, the next question is “Shouldn’t you take your own advice?” Hopefully, Jack will answer “yes”, perhaps sheepishly. (Id.)

The final question to ask is “Who will do the work?”  According to Ms. Lenski, “[w]hen one of them has a strong opinion about how something should be done, but the other person is the one who will do the work, the one who will implement it gets the advantage.” (Id.)

If we suppose in our hypothetical that (1) Jack cares the most (since it IS his yard being affected), (2) Jack’s reputation is more on the line than Jill’s since he is the one raising the issue and making such a big deal about it, (3) Jack’s best friend would probably tell him to pay for the fence himself if it means so much to him and (4) Jack will probably end up having to oversee the work since he is the one who wants the fence in the first place, then the conclusion is that Jack should build the fence and pay for it, himself.

Of course, I have assumed a lot that may not necessarily be true. But, hopefully, you get the gist of how this dispute will probably end.

So—the next time you are in a dispute in which each party is adamant and refuses to budge, think about these easy principles to apply and about Jack and Jill and their would-be fence!

…. Just something to think about.


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By |2019-01-11T18:00:56+00:00January 11th, 2019|Conflict resolution|0 Comments

About the Author:

Phyllis Pollack
Phyllis G. Pollack, Esq. the principal of PGP Mediation (www.pgpmediation.com), has been a mediator in Los Angeles, California since 2000. She has conducted over 1700 mediations. As an attorney with more than 35 years experience, she utilizes her diverse background to resolve business, commercial, international trade, real estate, employment and lemon law disputes at both the state and federal trial and state appellate court levels. Currently, she is the in­coming chair of State Bar of California’s ADR Committee. She has served on the board of the California Dispute Resolution Council (CDRC) (2012­2013), is a past president and past treasurer of the SCMA Education Foundation (2011­2013) and a past president (2010) of the Southern California Mediation Association (SCMA). Ms. Pollack received her BA degree in sociology in 1973 from Newcomb College of Tulane University and her JD degree from Tulane University School of Law in 1977. She is an active member of both the Louisiana and California bars. Pollack believes that it is never too late to mediate a dispute and recommends mediation over litigation as it allows the parties to decide their own solutions.