Tag Archives: Mediation Strategy

Mediation part II – best and worst case scenarios if there is no deal

In my last post, space prevented an expansive discussion of the concepts of BATNA and WATNA (also known as BATNO and WATNO). 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. They should also probably accept a deal that is worse than the BATNA since there is a risk that the outcome could be the WATNA, or something in between, if there is no agreement.

Paul Duggan has written an enlightening post on the issue (pun intended – you will see what I mean!) that I recommend to all readers.

Regards

Mark

Paul Duggan

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…

View original post 369 more words

Ten Tips about Mediation

I have recently appeared at about half a dozen mediations for a liquidator regarding very similar preference claims over a period of two months.  It was interesting to see how some strategies employed by us and the other parties worked.  Some tips coming out of the process:

  1. When booking the mediation, be dubious when the other side wants a half day mediation.  It is extremely rare for a mediation to be done before lunch where the case has any significant value.
  2. Prepare a mediation position paper with the client’s input, even if one is not required or exchanged, for use as speaking notes for the open session.  Focus on just a few key issues that make a real difference to the outcome of the case and try to put the arguments about those issues in plain language that can be understood by the decision-making clients on the other side of the table.  There is nothing less effective than a dry recitation of the pleaded issues in legal language.
  3. If an opponent suggests that an open session can be skipped to save time, resist:  you will find that you have to tell the mediator about your position anyway and some of your message will be lost in the retelling.
  4. In the open session, without completely ignoring your opponent lawyer, you should mainly address the clients on the other side of the table.
  5. It is not unusual for round table discussions to become expansive.  Clients can feel the urge to say perhaps more than they ought to, particularly about issues of fact or their (mis)understanding of some legal point.  You can use these situations to your advantage by dealing with the point in issue when addressing those clients in the open session.
  6. Introducing new issues at a mediation can be a very effective way of putting a party off-balance.  But be prepared for the other side to discount the new issue on the grounds they have had no notice of it.
  7. Know the financial stakes if you don’t settle.  It surprised me that in a number of cases the defendant attended without calculating their exposure to costs and interest at the mediation date, or their potential liability at trial if they lost.
  8. Try not to let parties get away with claiming they do not have authority to go over a certain figure to settle:  it is usually nothing more than a brazen negotiating tactic.  You will usually hear this line at about 4:45 pm when the parties are losing steam.  It is easy to give ground, in order to achieve a deal on the day.  Don’t do it!
  9. Even if the attendees do not have proper authority as a matter of fact, the party is usually in breach of the terms of the mediation agreement by reason of it, and if the matter cannot settle the other party is well within their rights to threaten to abandon the mediation and seek indemnity costs of attending.  The appropriate response is to point those matters out, and tell the other side to get on the phone to get the necessary authority.
  10. Have terms of settlement drawn up in advance of the mediation and have a laptop handy on which they can be edited.  Time saving at least one hour, which could make the difference between getting out at a reasonable hour or not.

Regards

Mark