At a recent mediation in Walnut Creek, CA I was reminded that people sometimes come to mediation with expectations that are, if not unrealistic, out of proportion to the process at hand.
Many times inexperienced litigants imagine that their case is unassailable and crystal clear to any disinterested third party to whom they may tell it. They have been living with their dispute for so long and they have gone over and over and over it so many times in their minds that they feel it is self evident that their position is righteous.
People in this position naturally assume that any judge and any jury will see things exactly as they do and will award them every nickel they are asking. To them it is literally inconceivable that there is any merit whatsoever to the position of the other side. People in the throes of such an illusion, like a sleepwalker, must be gently brought back to reality.
In many ways Mick Jagger said it best, “You can’t always get what you want, but if you try sometimes, you just might find, you get what you need”. This eloquent lyric is, in many ways, a mediator’s mantra.
Seasoned trial lawyers have all had the same experience, you go into court expecting to win – and you lose. Sometimes you go into court expecting to lose – and you win. The legal system is fraught with risk. I hear people say that what they want is “justice”. What they really mean is they want things to come out as they hope they will. They need to be educated to the fact that “justice” is a process and not a result.
To assist these people I introduce them to the concepts of BATNA and WATNA.
Imagine, if you will, a trial. At that trial the stars and the planets align just so and the evidence that is favorable to your side is all admitted while the evidence favorable to the other side is excluded. Your lawyer is brilliant, cogent and persuasive while the opponents’ counsel is turgid and tongue-tied. The jury after only a few moments of deliberation comes back smiling and beaming at you and enthusiastically award you every dollar you have requested. You really, as they say, ring the bell and have the best possible day in court. This is known as BATNA, or the Best Alternative to a Negotiated Agreement.
On the other hand, let us imagine the opposite. Your lawyer can’t seem to get her point across clearly, the judge rules that your critical evidence is inadmissible and the jury panel all look and act as if they are the best friends of the other side. They deliberate for only a few moments and come back to the courtroom scowling and frowning at you as if you have completely wasted their time and have no business being in a court of law. They announce a verdict for the other side and award you nothing. This is WATNA, or the Worst Alternative to a Negotiated Agreement.
Somewhere between these two extremes is where a mediated settlement lies. Sure, you want everything. But BATNA is not achieved at the mediation table; it is merely a benchmark by which one can measure goals. Likewise WATNA is never conceded in a negotiation, it is just there to illustrate that one has to be realistic about one’s expectations.
Mediation can be, and often is, hard work. You do have to try to get what you need. There is, however, a safety in mediation knowing that the other side also has their BATNA and WATNA and has demonstrated their willingness to negotiate by coming to the conference table. It is a sign of intelligent evaluation of one’s position to recognize that there are no absolute guaranties and it pays to be reasonable in attempting resolution.
So there you have it. You can’t always get what you want, but if you try sometimes, you just might find, you get what you need.
No matter the type of conflict or dispute that you may find yourself dealing with, call Liaise® Mediated Solutions, LLC and we will start you on the path to the best available negotiated agreement.