Wednesday, April 19, 2017

What is BATNA and WATNA mean for mediation?

Fran Brochstein
713-847-6000 office

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 possible success or failure if the case proceeds to trial.

Mediators like to discuss the possible best and worst outcome at trial to help people "reality test" their case. It helps to move the negotiation process forward. One of the roles of a mediator is to help the people look at their case from different angles as well as the other party’s position.  Generally speaking, many people have never considered the other party’s position and perspective.

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. One reason mediation is so successful is that mediation is done in a safe and secure environment where people can explore alternatives without feeling threatened or intimidated. At mediation, a person’s feelings and fears can be discussed.  At trial, the judge will only look at evidence and testimony.

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 and in a respectful manner.

I rarely see a case that is a "slam dunk".  Most cases have pros and cons.  If cases had a crystal clear outcome then the courts would be empty and attorneys would be out of work. 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. 

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 their 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 sometimes the release of stress in the people’s body language can be visibly dramatic.

I get a lot more hugs (and flowers) from mediations (even ones that don’t settle) than I ever did when I litigated. My mediation practice is much less stressful than litigation and I go home with a greater since of accomplishment and fulfillment.

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