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Two Critical Considerations for Any Mediation
Colleen Byers • Oct 01, 2023

Two Critical Considerations for Any Mediation


There are 2 things you absolutely need to consider before any mediation. The first is your BATNA, or the Best Alternative to a Negotiated Agreement, and the second is your WATNA, or the Worst Alternative to a Negotiated Agreement. If you have not analyzed these prior to coming to the negotiation table, then you have put yourself at a disadvantage for the mediation.



How to Analyze Your BATNA


Step 1: If you do not reach an agreement during mediation, what is the very best possible outcome you (or your attorney) could achieve in Court?  


In other words, if you are the Plaintiff, your attorney hits a grand slam and you are awarded all the compensatory (and punitive, if plead) damages you seek. If you are the Defendant, your attorney hits a grand slam and either blocks the Plaintiff from recovering anything or keeps the other side’s recovery to a minimum. 


This is $X.


Step 2: If you do not reach an agreement during mediation, what is it going to cost you to achieve the very best outcome in Court?

In other words, how much will you pay in court costs, plus attorneys’ fees, plus expert witness fees, plus time away from work, plus stress, plus damage to important relationships, etc. for you to achieve the very best outcome in Court?  

This is $Y.


Step 3: Calculate $X minus $Y and this is your BATNA.


How to Analyze Your WATNA


Step 1: If you do not reach an agreement during mediation, what is the very worst possible outcome that could happen in Court?  

In other words, you (or your attorney) lose every argument in Court and the very worst happens. This is $A


Step 2: If you do not reach an agreement during mediation, what is it going to cost you to end up with the very worst outcome in Court?

In other words, how much will you pay in court costs, plus attorneys’ fees, plus expert witness fees, plus time away from work, plus stress, plus damage to important relationships, etc. for you to achieve the very best outcome in Court? This is $B.


Step 3: Calculate $A + $B and this is your WATNA.


If there are multiple different claims or causes of action to be negotiated, then you should conduct a BATNA and WATNA analysis for EACH separate claim. Then you should rank your claims so that you know which one has the best BATNA as well as which one has the worst WATNA.


Calculating your BATNA and WATNA in advance of mediation helps you understand the range of possible outcomes and offers measurable data points as you consider settlement offers throughout the mediation process.

By Colleen Byers 06 Feb, 2024
Managing Emotional Clients Colleen L. Byers collaborated with fellow neuroscience geek and mediator, Chris Osborn, to deliver this month’s Expert Continuing Legal Education (CLE) Series sponsored by the North Carolina Bar Association. Colleen co-presented about the impact of trauma on clients in the legal system and shared some practical tools for managing difficult emotions within ourselves (as lawyers or as mediators) as well as with our clients. View the CLE, which includes 1 hour of Mental Health/Substance Abuse credit in North Carolina here .
By Colleen Byers 31 Jan, 2024
You have been mediating and negotiating all day long. You are fully invested and can sometimes glimpse the fragile light at the end of the tunnel. Suddenly, all the momentum that has been slowly building all day seems to come to a screeching halt. How do you avoid crashing into an unbreakable impasse? First things first. Pause and take a deep breath. Then take another deep breath for good measure. Then get a sheet of paper and a pen. Along the left side of the paper, write the numbers 1 through 5. Now, with pen in hand, ask yourself these questions and write the responses next to numbers 1 through 5. What is the craziest idea I can think of to solve this problem? What is the second craziest idea I can think of to solve this problem? What is a variation of the other side’s idea that would work for me with an adjustment? What is another idea? What else might work? You have now generated five new possible ways to solve this problem that you can share with the other side to keep the negotiation moving forward and avoid running straight into an impasse. Let me give you a real-life example. My daughters were fighting over the most coveted seat on the couch. The older child asserted, “This is my spot. I always sit here.” The younger child claimed, “But I was here first today!” Unsurprisingly, their attempts to persuade the other to acquiesce were unsuccessful. They are not old enough to engage lawyers to determine who had the stronger legal claim to the coveted seat on the couch but they both came running to me pleading their respective cases in hopes that I would serve as the arbitrator. I declined to serve as an arbitrator but did put my mediator hat on. We all sat at the kitchen table with paper and pen to brainstorm possible solutions that would work for both of them. You may be wondering how I got my young children to do this. I told them that they could not watch any television until they found a solution to which they could both say yes. So down they sat with pen in hand. Using questions 1 through 5 above, as prompts, they generated the following ideas: Take turns – alternate days; Take turns – set a timer and then switch; Sit on top of each other; Build a fort on the couch for both of us. Then we went back through the list one by one, and I asked each child if they were a “yes” or a “no” for that particular idea. Here is what that looked like:
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