Develop a Plan

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In section three “Yes, But…” of Getting to Yes: Negotiating Agreement Without Giving In, authors Roger Fisher, William Ury, and Bruce Patton offer suggestions for what to do in mediation when the other side has a distinct advantage.  The first strategy they suggest is “BATNA – Best Alternative to a Negotiated Agreement”. This is useful when the other side is more powerful.
There are two steps to this strategy: protect yourself from giving in to an unfair agreement, and make the most of the assets that you do possess.  In the process of protecting yourself, the authors suggest rather than having a firm bottom line, someone entering mediation should have a BATNA.   A bottom line may offer protection from making a regrettable agreement, but it can also limit flexibility and imagination.  A BATNA is essentially, the resulting situation if negotiation is unsuccessful.  For a couple entering a custody mediation session, the BATNA would be the court’s likely decision.  This should be the standard for measuring a potential agreement rather than an arbitrary bottom line.
It is unwise to enter mediation without thoroughly researching and considering what would likely happen if negotiation were unsuccessful.  In other words, look into the laws and regulations related to the matter or consult an attorney to understand what a judge would be likely to order. It’s also a good idea to have a “trip wire” set slightly above the BATNA to keep something in reserve. This allows some breathing room during mediation.
Next, the authors suggest making the most of the assets you do have. Obviously, the better your BATNA is, the less you have to fear in negotiating. The authors illustrate this with the example of walking into a job interview with no other offers, versus walking into an interview with two other potential offers.  The first situation is much higher pressure.
For this reason, having a well thought out and well researched back up plan is to your advantage.  It’s easier to perform well in the interview (or the negotiating room) when you are confident that you have other options.  Part of this should include looking into the other party’s BATNA.  The more you know, the more prepared you are.

Charlyn Pelter