How Mediation Works, Part Three: Exploring Options - August
25, 2009
by Joe Salama
Mediation often works because it has to work,
because the alternative, going to trial, is too costly and too
risky. This is usually the motivating factor which caused the
parties to consider mediation in the first place.
In any negotiation, and mediation is no exception,
the parties must always consider what would happen if the negotiation
fails altogether. The term "BATNA" (Best Alternative
To a Negotiated Agreement) was popularized in the 1981 book
Getting To Yes by Fisher & Ury, and remains an
important concept today. The landscape of possible outcomes,
including the point of total disagreement, must be mapped before
the parties can be expected to perform an intelligent analysis
of which path they should undertake.
Among the many other points on the map is the point
that approximates the expected outcome if the conflict proceeds
to trial. Each party, of course, will have their own estimate
of where their point will fall, which will be filtered through
their respective attorneys and reflect their versions of the
underlying facts, their confidence in their case, and perhaps
some posturing. It is essential to have a mediator who is experienced
in the area of law of the underlying dispute so that the mediator
can help plot a point objectively based on his/her experience
in litigating these types of cases. A retired judge who has
presided over these types of cases, and is now a mediator, would
be even better in predicting a realistic outcome.
But the mapping should not end there. There are only
three points on this map so far: each party's BATNA, and the
mediator's estimate of the likely outcome at trial. Most mediations
proceed with just these few points plotted on the map, and very
little effort is put into exploring other options before the
parties are asked to begin compromising their positions. Faced
with the alternative of an expensive and uncertain trial, the
parties are often forced to accept an unsavory settlement.
I believe that a mediator should present the parties
with as many potential outcomes as possible that satisfy the
parties' interests. Proper advance research into other jurisdictions
and old caselaw, combined with a little creative thinking, will
often reveal a variety of other options the parties have not
yet considered. The parties themselves are often the source
of additional solutions, as discussed more thoroughly in my article
How Mediation Works, Part Two: Expanding The Problem. The
idea is to remove the inquiry from a linear analysis of BATNA
vs. trial, and turn it into a multitude of combinations of possibilities
that get all the parties thinking about different resolutions
that have never been considered. The exercise of plotting the
points onto a whiteboard will often cause one of the parties
or the attorneys to suggest an option that is the start of a
satisfactory resolution. Although it remains a fact that if
the parties do go to trial, a specific outcome may
be more probable than others, perhaps one of these newly discovered
outcomes is preferred by all parties. As a mediator, I consider
the threat of trial a last resort perspective because it typically
results in a settlement that the parties will regret entering
into.
All mediators work differently, and it is up to each
party to ascertain which type of mediator best fits their needs
and/or their client's needs. It would be a mistake to walk into
a mediation without knowing anything about how the mediator
works, because if it turns out that the mediator's style does
not fit your conflict and the case does not settle, you may
lose your only opportunity to get the other party/parties to
the negotiation table.
© 2010 Mediation with Joe Salama
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