Friday, December 15th, 2017

Creative Solutions in Mediation to Soften Hard-Line Positions

October 22, 2013 by  
Filed under Newsletters

Litigation, as an adversary proceeding, encourages parties to take hard-line positions that carry high risks. Litigation is not very flexible – it forces sides in a dispute to attempt to resolve it through a highly structured environment with limited remedies. Mediation offers all parties the opportunity to find more creative, thoughtful and efficient solutions to their disputes. Here are some of the tools that mediators use to find creative solutions to soften positions to make parties open to mutually beneficial settlement agreements.

  • Needs and Interests Based Negotiation. Parties enter mediation with hard-line positions, but there are underlying needs and interests that cause the parties to take such positions. Mediation explores these underlying positions and assists parties in understanding the other side’s position to come up with creative solutions to satisfy both parties underlying needs and interests.
  • Best Alternative to Negotiated Agreement (BATNA) and Worst Alternative to Negotiated Agreement (WATNA). This is one of the most popular mediation methods, even if not all are aware of the phrases. In BATNA, parties explore their best alternative outcome to settling the case. It could be a trial victory, without finality due to appeal rights and appeals. This scenario would help a party value their settlement position. In WATNA, parties explore their worst-case scenarios if they fail to reach a settlement. Both BATNA and WATNA will look at the risks and potential consequences of not settling their dispute in mediation. When parties look at their worst-case scenarios, including the costs of litigation in money, time, emotional drain, stress, lost opportunities and the risk of completely losing, mediated negotiated agreements can offer a much better resolution for both parties.
  • Blind or Double Blind Settlement Negotiation, very similar to what is commonly called a Mediator’s Proposal. The mediator will offer a settlement that he or she comes up with and the parties will not be told whether the other side agreed, unless both agree. If one side agrees and the other does not, the side that did not agree will not know the other side was willing to settle at that offer, so it’s a no-lose proposition. In a double blind negotiation, the mediator will only take offers and demands from parties without communicating them to others. When there are several parties, a good mediator can effectively use this sophisticated device. The mediator may be the only one who knows the plaintiff’s demand and the offers from all of the several defendants. He can then put together a package that settles the entire case. Of course, this process needs buy-in from all concerned.

Experienced and skilled mediators can use the above tools to soften hard-line positions to the benefit of all parties involved. Thanks to the flexibility inherent in mediation, a mediator can employ creative solutions that would be unavailable in a restrictive litigation setting.

Kevin C. Coleman is a professional mediator and attorney who performs mediation services throughout the San Francisco Bay Area, including San Francisco, Marin County, Alameda, Contra Costa, Sonoma and outlying counties and throughout the state.


Speak Your Mind

Tell us what you're thinking...
and oh, if you want a pic to show with your comment, go get a gravatar!