“I don’t know” are the three words an attorney probably doesn’t want to hear her client say in response to the mediator’s question: “What is it that you need in order to move forward?” or “What would you like the parenting schedule to be?” or “What are some options that you can come up with to deal with the debt?” or even the simple “How much do you want for your equity in the home?” But those words are heard frequently throughout mediation sessions.  People oftentimes don’t know what they need or want and that is because they have not discussed their BATNA with their attorneys before coming into mediation.

 BATNA is a party’s Best Alternative to a Negotiated Agreement. Simply put, it is what happens if you walk away from mediation with no agreement. It was a concept introduced by Roger Fisher, William Ury and Bruce Patton in the seminal book Getting to Yes, Negotiating Agreement Without Giving In.  It asks people to look at all of the “what ifs” surrounding the negotiations that are about to take place, and in doing so, they will inevitably see some of the options of resolving the issues at mediation, going to arbitration, or continuing to trial.

 Case in point: Sally and John are going to mediation tomorrow.  The issue is alimony.  Sally is meeting with her attorney to prepare for the mediation.  They are discussing a resolution of the matter, hopeful to settle for a limited duration alimony amount of $12,000 a year for 5 years.  Sally is currently living in the home with John paying the Schedule A expenses.  Sally’s BATNA if the matter is not resolved at mediation tomorrow: she will not lose the roof over her head, and the PL support will continue (at least for now).  Sally’s position is that in order to move out from the home and move forward she needs the support, and without it, she cannot.  So, when the mediator asks Sally what she needs, Sally’s answer will not be “I don’t know,” but rather, it will be “$1,000 a month so I can move out.”  Having a good BATNA (like Sally does here) increases her negotiating power.  She can push John harder; if he wants her out of the house, he will meet her number, or come up with an alternative to allow her needs to be met.

 Preparing for mediation is not only reviewing the ESP statement and CIS, it is also ensuring that a party understands what happens if they do not settle. This can include the cost of litigation, including experts (custody, wage occupation, business appraisals, etc.) and trial retainers, but it also includes the BATNA, so that a client knows when they are sitting there what their true needs are and what they have (or don’t have) if they leave without an agreement.  I will only end with this: we all know that there is no price that can be placed on maintaining control over the decisions that have the greatest impact on your and your children’s lives, so it seems that’s really the greatest BATNA and why mediation is so successful for all parties involved.  

How to Find a Divorce Mediator | 5 Questions to Ask Her and Yourself

The benefits to mediation in a divorce, particularly a contentious one, are many, if the right mediator is selected. So, how does someone find the right mediator? Is there a “one size fits all” for mediators or does each case require a different type of approach?

 The first question you should ask is what type of mediator do you want: facilitative, evaluative or transformative.  Because there is not enough time to discuss all 3, I’ll focus on facilitative and evaluative.  Facilitative is the original type of mediation taught to mediators.  In it, the mediator does not offer her opinion or make recommendations, but rather, seeks to assist the parties in finding solutions for their problems.  In evaluative, the mediator might make recommendations, point out the weaknesses in each party’s case, and are often legal experts.  Evaluative mediation is modeled after settlement conferences held by judges. 

 The second question to ask when looking for a divorce mediator is what interest do you want to protect? This is the why or your concerns; your needs. Notice I did not say wants, but needs.  If you go into a mediation simply making demands, then mediation will not be as successful as if you identify the issues that are important to you.  For example, saying “it’s important to me that I have  enough money for a 2 bedroom apartment in a nice part of town” is an interest. Saying “I need $2,000 a month in alimony” is a position.

 The third question is: are you ready to be completely honest and lay your cards on the table? Mediation does not work if one (or both parties) is holding back. Remember, the mediator is not the decision maker (unless you later decide to make him or her the arbitrator).  Complete transparency is best at this point.

 Are you willing to be creative with solutions?  Oftentimes during divorce mediations, there are so many emotions that it is difficult for the parties to see all of the available solutions.  Rather than looking at an annuity with $50,000 in it and asking whether each party should receive 50%, perhaps the question could be reframed to ask “is there a way to grow the annuity to produce more so that each party receives more?”

 Finally, the last question you should ask is how much control do you want to have in the outcome of your divorce? Chief Justice Burger said that the problem with litigation was that it was “too costly, too painful, too destructive and too inefficient for truly civilized people.” Burger Says Lawyers Make Legal Help Too Costly. (1984, Feb. 13) NYTimes, A13. If you find the right mediator, she will control the communication, separating the people from the problem. 

Successful mediation will help to improve your relationship; hopefully to prevent future disputes, but in the event, they occur, then to at least make future issues more easily resolvable.