by admin on June 30, 2007
Your Best Alternative To a Negotiated Agreement (BATNA) helps you to determine how attractive a proposed negotiated agreement really is by considering what is likely to happen if a conflict is left unresolved. In Part II, I discussed the direct monetary costs that might be considered as part of a BATNA.
Especially difficult, yet often vitally important, is the calculation of indirect monetary and non-monetary costs if an agreement is not reached and a conflict continues. In some instances, the dispute will be resolved through litigation. Parties will need to consider how long it will take for the case to conclude, and how that will affect their business, family, or personal lives. Time and energy spent in litigation (consultations, depositions, trial, etc.) is time and energy taken from other pursuits. The indirect and hard-to-measure effect of loss of business goodwill can be substantial. The uncertainty of the final outcome of the dispute may inhibit or even freeze planning for the future.
For a family in conflict — whether in the context of a family business, an inheritance issue, difficulties in decision-making over a loved one’s care, or other challenges — the most significant costs in failing to reach a resolution as amicably and quickly as feasible may be impossible to quantify. What is the dollar value of preserving a family? For most families, this question can’t be answered and is painful to even consider. Yet in the heat of conflict, many overlook the long-term, potentially tragic results of an escalating conflict.
Better to use your BATNA and think very carefully about what is at stake if a conflict is allowed to fester and grow or is left for someone else (a judge, jury, arbitrator) to decide for you.
by admin on June 26, 2007
Your BATNA, your Best Alternative To a Negotiated Agreement, might seem simple to calculate in some circumstances, especially in a dispute over an amount of money. You could estimate the maximum amount that you might recover in a lawsuit or the minimum that you might be required to pay. You could then try to determine the likelihood of that result. A guarantee, of course, would be difficult to obtain. You might also find that even these estimates are difficult to make.
Additionally, you would want to consider how much you might pay out-of-pocket in litigation-related expenses. This estimate, too, may be difficult to determine, because unforeseen events could require legal services and costs greater than originally expected.
Nonetheless, a rough idea of your BATNA gives you a yardstick for evaluating a possible resolution reached by the parties themselves.
Next time: costs that are even more challenging to measure but may have great impact.
by admin on June 18, 2007
Mediators sometimes talk about your “BATNA” — a term coined by Roger Fisher and William Ury in Getting to Yes: Negotiating Agreement Without Giving In. “BATNA” is an acronym for “Best Alternative To a Negotiated Agreement. ” When you understand your BATNA, you have a way to evaluate a possible negotiated agreement against the best option you face if you do not reach agreement. Just a word about that word “Best” — best is based on a realistic probability of success, not a fantasy. Measuring “best” may be difficult; even deciding what outcomes and consequences should be measured to create a BATNA may be challenging. Yet without some standard against which to measure a proposed negotiated agreement, you cannot weigh whether a proposal is definitely too good to let go, clearly too bad to accept, or somewhere in between.
by admin on June 11, 2007
Sam Kagel, 98, a noted mediator and arbitrator, died recently. Among the thousands of disputes he settled, he is probably best known for his role in mediating a resolution to the 1982 National Football League strike. Famous for his salty tongue, he was also respected for his fairness, persistence, and insights about the path to resolution in complex and difficult disputes.
In 1990, he co-authored, with Kathy Kelly, “The Anatomy of Mediation: What Makes it Work.” The book includes his pithy description of a mediator as “neutral, but not neutered.”
Sam Kagel makes an important point: a good mediator isn’t passive or weak. A good mediator works with the parties to reach an achievable, effective resolution. At times, the mediator is the bearer of bad news: a reality check for one or more parties that their wildest dream for the outcome of a dispute is just that — a dream. At times, the mediator pushes the parties to think more creatively or flexibly to reach a solution to a dispute.
Throughout the mediation process, a mediator is impartial but not indifferent: the mediator’s goal is to help the parties reach the best agreement possible to resolve their conflict.