Monday, November 7, 2016

There are 2 terms that many mediators use --

BATNA (Best Alternative To A Negotiated Agreement) 
WATNA (Worst Alternative To A Negotiated Agreement)

Both can be useful to help people evaluate their case and their success or failure at trial.

Mediators like to discuss the best and worst outcome a trial to help people "reality test" their case. It helps to move the negotiation process forward.

Of course, discussing BATNA and WATNA with the people should be done privately and never in a joint session.  I find that people are more willing to open up privately then when they are in the same room.

As Judge Dempster (of blessed memory) used to say "even the thinnest pancake has 2 sides."  A skilled mediator should encourage people to see the pros and cons of their case.  Often this can be quite emotional and scary so it must be done gently. 

I rarely see a case that is a "slam dunk".  Most cases have pros and cons.  If cases were clear cut then the courts would be empty. Unfortunately, most people can only see their side of the case and they are resistant to seeing the other party's side of the story. 

Mediators who can help parties to perform a high quality and comprehensible alternatives analysis will often improve negotiation strategy significantly. 

Many times there are benefits to settling that the parties have not considered - such as (1) their growing legal fees (2) how their lives are put on hold while the lawsuit is pending (3) the possibility that they will lose and (4) how the lawsuit is impacting their physical and mental well being and (5) how the lawsuit is impacting the entire family. 

After being a full-time mediator for 10 years I have learned that the mediation process can be empowering and even healing for the parties involved in a nasty, contested lawsuit. Mediation is a process and it often takes time for the parties to embrace the option of resolving their disputes at mediation. When settlement happens the relief on the parties faces and body language can be remarkable.

I get a lot more hugs (and flowers) from mediations than I ever did when I litigated.

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