Law Times

Page 10 November 7, 2016 • Law Times www.lawtimesnews.com The BATNA and WATNA of family mediation BY JUDY VAN RHIJN For Law Times B eing prepared is half the battle when approach- ing mediation and a use- ful tool is to know your BATNA, or Best Alternative to a Negotiated Agreement, and WATNA, or Worst Alternative to a Negotiated Agreement, say experienced family mediators. "Perhaps the most important training a family mediator can take is negotiation theory," says Hilary Linton, founder of River- dale Mediation Ltd in Toronto. "If you accept that our prima- ry duty is to 'do no harm', then we must ensure that our clients are well prepared. The most im- portant preparation for media- tion clients is to carefully analyze their alternatives to a negotiated settlement, sometimes called one's BATNA/WATNA. Know- ing what options you have, other than what is being proposed in mediation, is your greatest source of negotiation power." The terms were first intro- duced in the book Getting to Yes: Negotiating Agreement Without Giving In, published in 1981. It has been described as a guide for effective interest-based bargaining, where parties focus on their interests and needs rath- er than their legal positions. The authors coined the phrase BATNA, and the mediation ac- ronym family has since been joined by WATNA, MLATNA, or Most Likely Alternative To A Negotiated Agreement, and EATNA, or Estimated Alter- native To A Negotiated Agree- ment. Use of the terms involves understanding the extremes and the possible range of outcomes of a negotiation. "If you have many other good options, and do not really need to make a deal in mediation, you will have more power than the person who is desperate to make a deal because they feel that it is their best alternative," explains Linton. Lawyer and mediator John Curtis of Kingston, Ont. says that "concepts of BATNA and WATNA are important because they ensure you don't make a deal that you could have done better on, and you don't pass up on a deal that is better than all the alternatives. "This is just common sense, but what may not be common is to actually spend time devel- oping the best- and worst-case scenarios," he says. Linton advises that it is man- datory for all mediators in Brit- ish Columbia to spend time with each client, before they even agree to take the case, to help them analyze their BATNA. "It is required only of certi- fied mediators here in Ontario," she says. "Certified family mediators must take three days training in screening for power imbalances including family violence, prob- ably the most obvious example of a poor BATNA. A person who has been victimized by abuse and violence, and is afraid for their life or safety, is unlikely to feel that they have an attrac- tive BATNA to whatever their spouse is proposing." Linton says power imbalanc- es come in all forms. "Good mediators help parties consider all the ways in which they can negotiate more power- fully, to increase their own BAT- NA before they mediate, includ- ing getting legal support, financial disclosure, emotional support, in- terim orders, etc.," she says. Curtis says that these con- cepts have universal applicabil- ity to any negotiation context, including family law. "Let's say you are in a family law dispute and you are fight- ing over who gets to keep the house," he says. "Rather than focusing on all the reasons why you want the house and how you can make having the house seem very unattractive to the other person (such as it needs a new roof, the furnace is old, the base- ment leaks, etc.), you spend your negotiation preparation time ex- ploring other options." He gives an example. "Decide what you like best about the house and go out and look for another house that you could buy with your share of the proceeds if your former spouse gets the house," he says. That would mean investigat- ing things such as how much money a person would have af- ter they were bought out, legal fees and how much land transfer tax was paid. "This gives you an idea of what you can afford if you have to buy another house," he says. Curtis also recommends cre- ating a list of things that are im- portant about the current home, such as its location or size, and what's available on the market that meets those needs based on what can be afforded. He also rec- ommends looking at things that a person does not like about the current house they might be able to "fix" by buying another home. "Make a list and do your mar- ket research," he says. He also suggests expanding your research to other factors. "For example, what if you have been looking for an op- portunity to start a business and the marriage troubles are part of what made that impractical? What if you were to decide to give up the house, live in a small apartment and invest the money from the sale in your new busi- ness?" he says. "If this were a pos- sibility, you would go out and get that business plan nailed down to see if this is even possible and look for suitable apartments." Doing this research reveals the best and worst alternatives to keeping the house, he explains. "You will go into the nego- tiation able to determine what a good deal or a bad deal looks like. A bad deal is worse than your worst alternative and worse than your best alternative," he says. "A good deal is better than your best alternative. It's really about designing your options around your specific needs and desires so you have meaning- ful choices. This will strengthen your hand because you will know what to say yes to and what to say no to." LT FOCUS John Curtis says 'concepts of BATNA and WATNA are important because they ensure you don't make a deal that you could have done better on . . .' REGISTER ONLINE www.lexpert.ca/cpdcentre For more information, please contact Lexpert® at 1-877-298-5868 or e-mail: lexpert.questions@thomsonreuters.com EXECUTIVE PROFESSIONAL DEVELOPMENT FULLY ACCREDITED IN-CLASS PROGRAMS & LIVE WEBINARS 2nd Annual Duties and Risks for Directors The Board Game: A World of Infinite Risks Aaron Emes & Stephanie Stimpson Partners of Torys LLP Toronto & Webinar November 15 8th Annual Dealing with the Lease: A State of the Art Update Innovation + Ideas in Leasing Stephen J. 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