950 Wadsworth Boulevard, Suite 205 Lakewood CO 80214
Family Law Basics: mediation and negotiation concepts
Family Law Basics: mediation and negotiation concepts

You should head into mediation with a few goals, and a few ideas for what is necessary for a settlement, versus what is negotiable to get to that settlement.  A useful concept in formulating your offers and responding to counter-offers is the BATNA, otherwise known as the Best Alternative to a Negotiated Agreement.  That is our best-case scenario is if we do not reach a settlement.  Generally, that means going to trial and presenting our case to the Court.  If we can predict what the Court is likely to do, we can decide whether an offer on the table is worthwhile or worthless.  On the other hand, we can never guarantee the outcome of a court hearing, so the best alternative may be to stay out of the courtroom.

It’s also important to think about the BATNA as it relates to the other side of the case.  During mediation, your ex will also need to decide what their best alternative is.  This is where good advice from your lawyer comes in.  She can look at your case from a few different angles, so when you come into mediation, you already have an idea of not only your best alternative, but the other side’s as well.  If you know you are likely to see a good result from a trial, you can get an idea of how much movement you may see when your ex wants to avoid the courtroom.

While many different terms may be on the table in mediation, we also have limits to what we can accept.  If we have an idea of our Walk Away Point prior to mediation, we can better measure the offers in front of us, and not waste time discussing settlement terms that we cannot ultimately agree to.

Finally, as we go through the process of settlement and mediation, we need to consider Sunk Costs.  An example is the fee for mediation.  Most mediators require a deposit representing a certain amount of time, whether or not we use all the time available.  That deposit is a sunk cost.  We pay for mediation whether or not we reach an agreement, and we’ll spend some time in negotiation that we can’t get back.  However, we should not give those Sunk Costs the same weight as the future costs and benefits of a settlement agreement.  Even if we’ve spent four hours in mediation, that time, money and effort should not be the reason to accept a bad offer.

Related Posts

Leave a comment