What is BATNA and WATNA mean for mediation?

Fran Brochstein
www.familylaw4u.com
713-847-6000 office


There are 2 terms that many mediators use --

BATNA (Best Alternative To A Negotiated Agreement) 

and 

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.

Post Divorce Check list written by Denise with Divorce Strategy Group from the Woodlands, Texas

POST DIVORCE CHECK LIST

1. Obtain a Certified Copy of Your Divorce Decree.
   This can be obtained from your attorney or from the county clerk at the courthouse.
   Make a copy of it in color so you have two. One to use and one to keep at home for back up.
   
2. Keep Your Marriage License.
   You may need it in the future for social security or other needs in the future.
   
3. Complete the QDRO Process.
   This is important to do sooner rather than later!
   
4. Complete the IRA or Other Investment Transfer Process.
   To receive any IRA or other non ERISA assets from your ex-spouse you must follow the investment firms’ rules. Call the firm for more information. This may require your ex- spouses signature.
   
5. Change Your Beneficiaries.
   Do this on assets you owned during the marriage and still retain (your own life insurance policies, annuities, 401k/403b or IRA, etc.)
   
6. Please Run a Credit Report on Yourself.
   
7. Remove Your Ex-Spouses Name from Accounts
   Go through your accounts and be sure to adjust the registrations. Pay special attention to any accounts that will be reporting to credit bureaus and any financial accounts. Re-title any vehicles in your name alone.
   
8. Establish Your Own Financial Identity
   If you haven’t already, get a credit card in your name as well as a checking and savings account. Start building your individual credit as soon as possible. Use the credit card but pay it off each month.
   
9. Notify All Insurance Policies
   Be sure to review the beneficiaries on any policies and make sure that your ex-spouse’s name is removed. Visit with your agent to be sure that you have all the coverage you need and that you understand all details of your policies. If you’re going to be using COBRA health coverage through your ex-spouse’s employer, contact your insurer to find out to set it up.

10. Get Organized
If you’ve never had one, create a filing system for all of your important financial documents as well as any statements that need to be retained for tax information.
11. Create a Budget
You’re embarking on a new life with a whole new set of finances. Sit down and create a budget. If this is too overwhelming, ask your financial advisor for help.
12. Write a New Will
Everything has changed. Be sure that your new wishes are clear so that there is no confusion.
13. Educate Yourself
You don't want to jump into major financial decisions before getting your bearings and making sure you fully understand the landscape. Many people find themselves in a situation where they are responsible for financial tasks that they never had to perform in their marriage. Take time to educate yourself and understand your financial options. Seek out a financial expert who can help you grasp a better understanding of your money matters.
14. Notify your Employer
Your employer may need to change company records, health or life insurance plans, and update accounts regarding retirement or 401-K programs. You also need to fill out a new W-4 with your new tax filing status.
15. Revoke any Powers of Attorney
If you have given your former spouse a power of attorney you should ensure that it is revoked in writing.
16. For Women, Change your Name with Social Security Administration.
Your social security number will not change. Please visit https://faq.ssa.gov for more information.
17. For Women, Change your Name with the DMV (Driver’s License).
You can also change the name on your Texas DMV vehicle title and change your voter registration name at the DMV. Please visit http://www.txdps.state.tx.us/DriverLicense for more information.
18. For Women, Change your Name on Your Passport.
This can typically be done via mail. Please visit https://travel.state.gov/content/passports.
_____________________________________________________________________________________________

1095 Evergreen Circle, Suite 200 I The Woodlands, Texas 77380 
Office 281-210-0057 I Fax 832-442-4912 I Cell 281-782-0435 

www.DivorceStrategiesGroup.com 
Denise@DivorceStrategiesGroup.com 

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Am I married or divorced in Texas?

The Bureau of Vital Statistics in Austin, Texas keeps track of all family law cases.  I often have people call me to see if they are legally divorced.

1. Check the person's social security number. If the person is dead then the social security number will be inactive.  And, you don't need a divorce since you are a widow.

2.  If #1 does not work, then go to the Bureau of Vital Statistics website and search for information. With your full legal name, date of birth and social security number your info should show up. To be on the safe side, also include info on your spouse along with their date of birth and social security number (if known).  Many times, the spouse will not include your name correctly or your info correctly to make it hard to find you.

3. You can also hire a private investigator to do a search for you. This tends to be fairly expensive but perhaps it's worth it to you.

Good luck!

Texas Legislature for 2017 is very considering some new family laws

Getting Rid of No-Fault Divorce A Bad Idea in Texas

In a recent editorial, Maria Anglin argues that getting rid of the no-fault divorce law in Texas is a bad idea.  State Rep. Matt Krause, R-Fort Worth, supports the idea that any couple looking to divorce should have to "live apart for three years before they can legally divorce."  Anglin counters that for some, "staying together is a painful mistake."   Maria Anglin, San Antonio Express News   Published around 01/07/2017

Read Article: San Antonio Express News     My 2 cents: 1. Before Texas had "no fault" divorce then couples would hire a p.i. to "catch" the other spouse in a compromising situation. Many were made up. 2. Domestic violence occurs in a lot of divorces. So why force a person to stay married to a "bad" person? 3. The kids can look at the final decree of divorce (files are open to the public) and learn that their parent committed adultery. In my 25 years of being a TX lawyer, I've only done it once - that was when a minister who had sex with a 16 yr. old child was trying to get a new job in another state. This guy did not need to be around teen-age girls! 4. Judges no longer require counseling to try to save a marriage. Why? Because they found it did not work. Usually by the time a person files for divorce they are DONE with the marriage and it's beyond hope. 5. It's going to cost people more to divorce. Divorce in Harris County can run thousands of dollars. Why encourage higher legal fees that the average person cannot afford?

Texas Supreme Court to hear same sex benefits case.

Texas Supreme Court to Hear Same Sex Benefits Case

The Texas Supreme Court is to reconsider same-sex benefits across the state.  The all-Republican state high court has agreed to hear reconsider a Houston case challenging the city’s benefits policy for married same-sex couples.  In October, Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton filed an appeal asking the Supreme Court to reconsider the same-sex benefits case. Opponents of same-sex benefits may say that gay people have a fundamental right to marry but no right to equal benefits.  So stay tuned... Alex Ura, Ft. Worth Star Telegram   Published around 01/20/2017

3 truths about mediation from www.mediation.com

GREAT ARTICLE FROM WWW.MEDIATION.COM 3 Simple Truths about Mediation Mediation is a process that has led to the successful resolution of a number of different types of cases, including partner disputes, divorce cases, custody issues, intellectual property claims, personal injury cases, multi-jurisdictional tort issues and even some criminal cases. 1. Mediation Can Benefit Both Parties When mediation is handled properly, it can be an excellent process. Mediation is confidential, so even if the parties do not reach a settlement, they cannot disclose what was said in court. It is also a non-adversarial approach to legal problems in which the participants cooperate to resolve their legal dispute on their own terms. This allows mediation to resolve many disputes faster, cheaper and more amicably than litigation. 2. Mediation Takes Some Time Participants cannot be in a hurry. The legal issues involved in mediation are often complex with the potential to impact lives for a long time to come. It takes time for the mediator to determine the interests of the parties and to work out potential solutions to these issues. The parties must be prepared to negotiate in an ongoing manner. 3. Not All Attorneys Support Mediation Not all attorneys support the role of mediation. A seasoned litigator may rely on his or her own skills to try to get the outcome the client wants and may find little need for a mediator. However, mediation can often help both parties achieve positive results and develop solutions that litigation could not provide. Talk to your attorney early in the process to see if he or she supports mediation. For info on mediation I'd look at the following websites: www.mediate.com www.mediation.com Texas Association of Mediators Texas Mediator Credentialing Association Association of Attorney-Mediators Academy of Professional Family Mediators Association of Conflict Resolution - Houston Chapter Association of Family & Conciliation Courts

Wills and other estate planning documents

Please, please, please... talk to an attorney about a will and other documents that you might need.

Everyone needs a HIPAA release due to the recent changes in the laws that can find doctors thousands of dollars.  Even if married, you need a HIPAA release for your spouse to talk to the doctor.

I also recommend that you think about
1. Who you would (or would not) want to be your guardian if you ever need one
2. Who you want to handle your funeral arrangements
3. Do you want to donate your body to science or leave the option open for body party to be donated
4. Who do you want to make medical decisions if you are unable to talk or communicate
5. Do you (or don't you) want to be put on life support if your death becomes inevitable
6. If you have children, who would you like to be your children's guardian (or not be appointed a guardian)
7. Who do you want to handle your financial affairs if you become unable to do so

I know we don't like to think about it but we are all getting older each day and none of us are getting out of death.  At least, I've never met anyone.

You can save money and family feuds if you designate people to take care of your affairs.

And please don't wait until you are mentally unable to sign legal documents.

Do it now when there is no rush and you have time to think about it.

I encourage people to review their financial affairs and where they are in their life every 5 years.

I had someone listed that moved across the country so I had to revise my documents since he was no longer around to help me.

Going to court and talking to a clerk

A friend just told me that she went to court and got legal advice. I asked who she talked to at the courthouse.  She said a clerk at the window.

Please be advised that the clerk at the window might only have a high school decree.  These people are usually not attorneys.  And, they are not supposed to give legal advise.

In my friend's case, since she did not consult with a real attorney it's going to cost her family a lot of money to fix her problem.