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Rule One: Know Your Alternative(s) Should Mediation Be Unsuccessful

December 19, 2010

If I could give only one piece of advice to all mediating parties, it would be this:  It is imperative to the success of your mediation that you know what the likely outcome of any alternative you have to mediation will be if you are not successful at  your mediation.

I take no credit for this concept.  It is the central theme to one of the best books I have read on the art and science of negotiation, Getting To Yes, by acclaimed authors, William Ury and Roger Fisher.  (If you haven’t read it, your really should.  It is easy to read,  easily understood,  and a basic bible to experienced negotiating parties and therefore, mediators as well.)

But in mediation practice, this central pre-mediation concept and tool, I contend, has become essential to any party’s ultimate success in their mediation. 

And, I continually observe the recurring pitfalls of those who ignore this basic underlying initial premise to any mediation.  And the foreseeable successes of those who do!

Note the two requirements:  (1) Identifying your alternative(s) and (2) “knowing” it/them.

For example, all negotiation, and certainly mediation, begins with the basic premise that one must compromise to obtain the agreement with the opposition required by mediation.  At the least there must be some exchange of a portion of one’s position for some portion of the opposition’s. 

But compromise from what?   In mediation, the answer is: “Not  from what you want, but rather what will be “given” you by others if you do not voluntarily resolve the issue.   What will be given to you, is your alternative.

Trials will always determine the possibilities of any issue that cannot be voluntarily resolved.  They are for failed resolutions.  Therefore, resolution must be based upon probability.  And, a probability that opposing sides can agree upon. 

Therefore, for purposes of resolution by mediation, it is the probability of an alternative outcome, not its possibility, that controls the likelihood of resolution.  

And, “knowing”, simply means you have invested  the significant effort required for identifying the probability that a certain possible outcome will occur.   This is known in many circles as risk-analysis.  And those who do it best, obtain the benefits of their efforts.

Too often parties, and worse, their counsel, are so focused upon what they want to achieve in litigation as their “goal” in mediation, that they completely fail to contemplate what they “likely” will receive by their ultimate Trier of fact or law, if their mediation is a failure.  In so doing, they miss the central theme of any negotiation:  comparing what you can get now by what you likely will get if negotiation fails. 

And, then you must still decide how much you should/must compromise from your alternative(s) as a discount for a present resolution to waiting your predicted, probable outcome at a later date.

Both sides know that there will be an alternative or alternatives, if mediation is not successful.  And both sides have opinions,or should have opinions, of what those alternative outcomes will likely be.  And those who have done their homework will have the strongest grounds for their opinions.

But regardless of the strength of any opinion, there always remains uncertainty.  There still remains time required to reach the alternative(s).  There is still money to be spent, some never to be recovered.  And then, any final alternative is still subject to appeal and thus more uncertainty, more time and more money.

Thus, it is precisely those uncertainties, that time and the monies at risk, that ultimately drive  any mediation resolution.

But the best resolutions will always be derived  from the known alternative(s) identified prior to mediation and used the most wisely by mediating parties to obtain early results closest to their later alternative(s).

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