Practitioners in the field of ADR lament that mediation has become increasingly “judicialized” – meaning that it is all too often viewed as just another step on the litigation path toward trial. That was not the prevailing view when I began my mediation practice almost 25 years ago. Mediation was viewed as a uniquely significant settlement opportunity, where the parties came prepared to explore settlement options and to negotiate their way to that end.
There is some unfortunate irony in the reduced role that ADR is granted in the contemporary litigator’s playbook. The litigation mindset is determined to conquer all in its pathway (at least up until the moment of a final verdict). So much so that even ADR, which is positioned as a true alternative pathway, is reduced to being merely another item in the pre-trial preparation check list.
But mediation is not a trial in miniature. The assessment of trial risks – and the costs of winning or losing – can be important factors in evaluating whether to settle and at what value. But mediation has so much more potential than that. Mediation provides a forum in which to explore alternative approaches and remedies, to better understand what is driving the underlying conflict, and the parties themselves exercise control over where and how it ends.
Mediation academics have identified an alternate metric by which to measure success in negotiation. This is referred to as each party’s BATNA. A BATNA is an acronym for considering whether maintaining the conflict, and moving ahead in litigation, is “Better than the Alternative of a Negotiated Agreement.” Practically, what this means is that the disputants should step back from the firing line and assess whether the costs, aggravation(s) and risks of unknown results in litigation present a better course than accepting the offer on the table – or offers that might reasonably be obtained through further negotiation.
If you enter mediation with only a litigation mindset – then you are not engaging in “alternative” dispute resolution. If you look at the conflict and the possibilities of resolving it solely through a lens of the evidence that will be formally introduced at trial, or the likelihood of winning a summary judgment motion, you are merely handicapping the risks against, and potentialities of success, at trial. If you wait for the other side – or the mediator – to convince you that you should make a settlement offer worthy of consideration, you put the power of resolution in the hands of your opponent. In so doing, you likely are not representing your own or your client’s interests very well; because you have not even begun to explore the varied possibilities of resolution. Remember, all parties must say “yes,” for there to be a settlement.
Ironically, most advocates who behave in this way believe that they are negotiating from a position of strength. I disagree. I believe that they are merely negotiating within their own limited safety zone, which almost assuredly guarantees that the case will not settle, and may serve only to confirm their own views of the case’s outcome. Unfortunately, one’s opponent probably is not there with a similar intention of pre-trying the lawsuit, so that any “confirmation” of the likely outcome is illusory.
If your aim is settlement, why approach mediation in such a guarded manner? If you’re looking for confirmation of the accuracy of your case evaluation, don’t go to mediation, but go straight to trial. There you will surely find out how strong your case is. There the court will exercise its sole power to enforce its independent judgment for, or against, your interests. You will learn with certainty whether your projections were accurate –right or wrong – but you will have lost all control to say “no thank you” if you are unhappy with the result.
Be careful, for this might not be the best course of action, particularly for those who are inclined to be risk-averse. If you are reluctant to take risk in the context of mediation just imagine how exposed to risk you will feel on the eve of trial, when belatedly you might well regret that you did not explore your opponent’s entreaties to reach a mutually acceptable negotiated settlement.