Mediation or compensation?

It provides a reasonable yard stick or comparator upon which the party can rely for considering a framework for the negotiations. The BATNA assessment involves the consideration of costs, time, levels of anxiety involved and the risks that may arise in pursing a pursuit through to a full Court hearing compared with the possible outcomes from such a hearing.  The assessment therefore provides an objective measure of when settlements through negotiations may be a pragmatic course to follow.  If the negotiations indicate at an early stage that the opponents are unable to come to a form of settlement which is within the reasonable range of responses under the terms of those negotiations then the BATNA assessment provides guidance to the disputant on whether it is reasonable to continue through the mediation.

If a disputant knows his BATNA then he knows the strict limits to his negotiations and can therefore enter upon a mediation process in full knowledge of the possible outcomes he wishes to achieve in the mediation process.  This is likely to make the mediation process more likely to succeed provided the other disputant approaches the mediation process in the same way.  It the other disputant has not carried out a BATNA assessment then given the absence of any apparent “reality check” by that other disputant it is a factor which may undermine the chances of success in the mediation process.

It is always easier for parties to accept an objective standard rather than to concede to the other parties demands.  The BATNA process refers to the best option available to the party should it call off the negotiations.  The BATNA process provides an objective measure of when a settlement through negotiation is pragmatic even though it does not satisfy all objectives.

It is also prudent for a disputant attending the mediation process to be fully aware of their BATNA position because it is likely to be relevant to discussions with the Mediator during the caucus private session.