The concept of exploring alternatives during the mediation process is not new. For many years, mediators have used the concepts of “BATNA” (Best Alternative to a Negotiated Agreement) and “WATNA” (Worst Alternative to a Negotiated Agreement) to help the parties understand their potential best- and worst-case outcomes if the parties are unable to reach a voluntary resolution. First used in the 1981 mediation treatise entitled “Getting to Yes: Negotiating Without Giving In” by Roger Fisher and William Ury, and put in its simplest terms, the process results in a potential “zone of settlement” by first making a realistic assessment of the monetary range of potential trial outcomes, discounted by the percentage (or range of percentages) of those outcomes actually occurring based on the strengths and weaknesses of the parties’ positions, and further discounted for the non-reimbursed fees and costs of achieving those potential outcomes. That “zone of settlement” can then be used to negotiate a settlement within that range.

While this process compares best- and worst-case trial outcomes, on the one hand, versus what may be achieved through settlement, on the other hand, another way in which the concept of exploring alternatives in mediation in appropriate cases is to explore various alternative settlement scenarios. For example, if the matter involves a partnership dispute between co-owners of an ongoing business, alternatives might include: 1) Partner A buys out Partner B; 2) Partner B buys out Partner A; 3) both partners continue to own the business but the capital accounts are adjusted, and/or management authority is changed; 4) the business is sold to a third party and the partners split the net proceeds in an agreed-upon way. The same scenarios could be explored in a dispute between co-owners of real estate.

Or if the matter involves a boundary dispute between neighbors in which Neighbor A’s exterior access to the rear of their property extends over the property line into Neighbor B’s property and Neighbor B wants to enclose their property with a side fence that will cut off Neighbor B’s exterior access on that side of the house, alternatives might include: 1) Neighbor A builds a new exterior access on the opposite side of their property; 2) Neighbor B moves the proposed fence inward and sells an easement to Neighbor A for the use of the exterior access; 3) Neighbor B moves the proposed fence inward and sells the disputed strip of their property to Neighbor A, and the lot line is adjusted accordingly; and 4) money is exchanged from one side to the other, depending on which option is chosen.

Once all potential settlement scenarios have been identified, I’ve found it helpful to then have the parties separately provide me with a list of the possible of scenarios in their order of preference. And in appropriate cases and with the parties’ permission I then provide both lists to both sides. Sometimes the priorities are the same, in which event we can focus our attention on achieving the agreed-upon most-favored outcome. And when the priorities don’t overlap, we can then focus on how we can achieve a compromise where one side’s number one priority is achieved but the other side gets something in return – or where neither side’s number one priority is achieved, but where the parties can nevertheless live with an agreeable compromise.

In appropriate cases, and with the parties’ cooperation in exploring other ways to peel an orange that they might not have considered, this process can sometimes achieve a win-win outcome – which is, after all, the gold standard for mediation.

As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when it is safe to do so. I look forward to working with you.

Best regards and stay safe,

Phil Diamond