The aim of this article is to assist the Parties, and their legal representatives, to shift the focus from legal issues and prepare for mediation in order to find a resolution.

1. For the Party in dispute to consider.

Realism; what do you need to achieve?
What interests do you share with the other party?
What do you need to say to the other Party – either by yourself, through the lawyer or through the mediator – to help achieve what you need?
What do you want to hear from the other Party which would help you achieve your need?
What are the items of most importance to you at this stage?
What do you think are the other Party’s main concerns at this stage?
What do you think that the other Party really needs out of the mediation?
What do you think the other Party wants to hear from you which will help to move you on to a realistic outcome?
If you can’t find a mutually acceptable solution, what will happen – what will be the consequences for you if this is not resolved?
What do you think will be the consequences for the other Party?

1. For the legal representative of the Party in dispute.

These are designed to help you construct your clients’ BATNA (best alternative to a negotiated agreement).
Realistically how much client expenditure will be needed to get to judgment from the date of the mediation?
What are the client’s likely irrecoverable costs overall?
What is the client’s exposure to the costs of the other Party?
In reality is the client willing to proceed to trial?
When is the trial likely to take place?
What is the value to the client of his/it’s time or other direct costs?
Is there a better economic use for the time than litigation, and if so, can you calculate the cost of that that?
Is the client’s ambition to resume a relationship with the other Party, if possible?
What is the likely value of any future ongoing relationship?
What other factors need to be taken into account? For example reputational, social, communal, cultural or health issues brought upon by the stress of the dispute.

Contributors to building the BATNA

The lawyer – identify true value in the claim; percentage chance of success; litigation costs of both sides;

The client – impact on business of winnings/losing case; impact on relationship; reputation; third or non-parties; opportunity cost and management time; cost of replacing the relationship;

The expert – value of opinion in evidence; advancing technical solution/option;

The supporters – connected business; connected relationships; value of outcome of the case.

3.Conceptual concerns in relation to mediation:

  • Lack of familiarity of mediation – process, purpose and aim.
  • Perceived loss of control of the dispute.
  • Preparation for mediation:
  • 1. Reality testing
    2. New information materialising
    3. Conceptualisation
    4. Outcome
    5. Client advice

  • Recognition and acceptance of:
  • 1. BATNA – Best alternative to a negotiated agreement
    2. WATNA – Worst alternative to a negotiated agreement
    3. PATNA – Possible alternative to a negotiated agreement

    Please contact Lux Mediation for further assistance on preparation for mediation.