If you think it is likely that an investigation into BATNA and WATNA will be relevant during mediation, it may be helpful to draw attention to the need for such an analysis at an early start of the process in the Ombudsman`s opening statement. A simple explanation should suffice, suggesting that it might be useful for the parties to consider their alternatives outside of mediation at some point in the process in order to compare them to mediation options. This can be indicated without using the terms “BATNA” and “WATNA,” which are probably unusual and confusing to the parties. When disseminating the information gathered during the analysis, mediators should keep in mind the pedagogical tone. It is very easy for parties to react defensively and hostilely to an analysis that seems threatening and/or exaggerated. Mediators can also remind the parties that this is a “substantive analysis” that can be set aside when the parties return to negotiation in mediation. They do not need to definitively determine what would happen during court mediation or any other alternative route, but they must have a clearer idea of the likely outcomes as possible benchmarks for their negotiations. Here is a process developed by Harvard Law School to develop the best alternative to a negotiated agreement: in this case, there is a potential agreement area – $6,000 to $7,500. Somewhere in this area, the two sides should be able to agree. Sometimes lawyers assure mediators that they have done the analysis with the parties, but say they do not want to share with the Mediator. This too, like any other tool, can be studied and negotiated in the process.
Even if lawyers have refused to share their own thoughts with the Mediator, the Mediator can obtain useful information by sharing their own or estimating the other party on a number of possible outcomes and noting how lawyers react or correct them. When we talk about BATNA, it is usually involved when you are trying to strengthen your position, and that is something you want to develop. To strengthen your hand in this situation, you can go and receive some additional job offers so that you can compare them to this particular position. So you are in a better negotiating position. You are trying to figure out how to get other decent options, how to turn this into a situation where you might get the best alternative if you don`t get/take this job. When we talk about BATNA and WATNA, we cannot forget the context of the situation. Not all negotiations follow a cookie cutter pattern, even if the problems are similar. If you`re trying to figure out what`s going to happen when you leave, and if you don`t have good alternatives, really look at your worst case or your WATNA. Sometimes “not too bad” must be the answer. As noted in the example above, it is important to have an optimal alternative to a negotiated agreement before negotiations begin. If Colin had not had a BATNA, Tom would have had more bargaining powerThe bargaining power of buyers, one of the strengths of Porters` industry analysis framework, refers to the pressure that customers/consumers can exert.
Know BATNA colins is at 7500 $US, the highest price that Tom would be able to sell his car to Colin for $7,500. When the analysis focuses on possible outcomes, lawyers are the natural sources of information. Ideally, they have the experience and knowledge of where they work to provide “expert” information on the best and worst possible outcomes. Even if they are less competent than the mediator likes it, they expect to be consulted when this analysis is done. If the analysis focuses on other avenues than litigation, the parties themselves and/or other types of experts or resources may be needed to provide information on possible outcomes.