Preparing for a mediation—not a miracle

Mediation approaching? Care for a back-to-basics checklist beforehand? Then look at Mark McKillop’s recent blog “Ten Tips about Mediation” (link below).

But first let me top up Mark’s top ten with two extras – the twin concepts of ‘BATNO’ and ‘WATNO’.

In approximately 36 A.D. a notorious persecutor of Christians was travelling from Jerusalem to Damascus. Out of the blue (literally) he was knocked to the ground, blinded by a brilliant light and asked by a booming voice “Why do you persecute me so?” The traveller repented, recovered his sight and went on to a brief but spectacular career as St Paul, arguably the most famous convert, evangelist and martyr Christianity has ever produced.

How is this relevant to preparing for a mediation?

It absolutely isn’t. Damascus Road conversions never happen in mediations.

And yet it seems a rare mediation indeed that does not involve at least one party apparently banking on a complete St Paul-style about-face from the other side during the mediation.

You are only a lawyer. If you cannot supply lightning during the mediation don’t permit your clients to expect Pauline conversions either.

Instead, get your clients to focus their mediation preparation on the real world alternatives to mediation.

Let’s say you are for the defendants. You have told your clients that you are reasonably confident that the plaintiff’s claim is untenable and will fail entirely at trial. (So far, your punters love what they are hearing and see no reason at all to settle at mediation.)

Now the bad news. The trial is unlikely to start for another six months. It might then run, say, two weeks before the judge reserves the decision for, say, a further three months. The decision vindicating your people is already nine months and $50,000 – $100,000 away. That decision might then be appealed delaying practical finalisation of the argument for another year or so. Finally, when all the appeal rights have been exhausted your clients might discover that the costs orders they have amassed along the way are worthless against a penniless plaintiff.

And that all assumes that that your camp wins every point (which, of course, you can’t promise).

Surely your clients are looking more interested in mediation now?

As this example illustrates, even a litigant holding a strong hand should always give serious thought to settling.

And any idea of settling which is premised on the other side cheerfully surrendering at mediation after being blinded by the brilliance of your case is not even halfway serious.

Every client going into a mediation needs to have a realistic understanding of both the best and worst case scenarios if the case does not settle.

Because the mediation industry loves acronyms, these upside/downside concepts are sometimes referred to as the ‘BATNO’ (Best Alternative To a Negotiated Outcome) and the ‘WATNO’ (Worst Alternative To a Negotiated Outcome).

Settlement at mediation on the best terms apparently available will sometimes be a poor choice compared to a litigated outcome.

But settlement (or non-settlement) at mediation without prior regard to both your team’s BATNO and WATNO will always be foolhardy.

Now see Mark McKillop’s recent “Ten Tips about Mediation” here.

1 thought on “Preparing for a mediation—not a miracle

  1. Reblogged this on markmckillopbarrister and commented:
    In my last post, space prevented an expansive discussion of the concepts of BATNA and WATNA. These are concepts used in mediation to persuade parties to think of the financial consequences of not settling on the day. Literally, BATNA means “best alternative to not agreeing”, whilst WATNA means “worst alternative to not agreeing”. The idea is to work out the best and worst case scenarios for the client in financial terms if they don’t make a deal. Of course the best case scenario should serve as a base line for an offer at settlement: rationally, a client should accept any offer meeting that figure since they cannot do any better by not agreeing and, say, continuing to litigate. Paul Duggan has written an enlightening post on the issue (pun intended – you will see!) that I recommend to all readers.

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