In the book “Getting to Yes”, author Roger Fisher creates the acronym BATNA, standing for Best Alternative to Negotiated Agreement. This is your situation should the mediations fail and provides a standard against which to measure any proposed solution. This prevents you from accepting some solution that you would later regret. It’s not actually a “bottom line”, which can inhibit mediations and reduce the chances of an equitable settlement.
Establish in your mind an agreement that is unacceptable, but to which you would still agree rather than have the mediations fail. This tripwire can serve as a springboard for further proposed settlements.
Sometimes you have to work at establishing your BATNA. Think through the options available to you should mediations fail. Settle on the most promising idea and develop it, writing out how you can implement the plan. Develop your plan through research, discussions with professionals or experts, or otherwise arranging for some desirable alternative should mediations fail. In the case of a divorcing individual, this may be to seek a higher paying job, attain greater skills, or reduce living expenses in order to live comfortably.
During mediations, it is sometimes a good idea to allow the other side to know your BATNA, especially if they think you are “backed into a corner” and have no real alternatives. This can give strength to your arguments. Remember, if your BATNA is actually worse than the other side realizes, divulging it will weaken your case.
When the opposing party refuses to focus attention on interests and refuses to consider objective standards, you should still concentrate on the merits of principled mediation. However, there is another method that will focus their attention on merits, as well.
When they attack, rather than respond with an attack, treat each attack as if it were a genuine attempt at mediation. Look for the interests behind the attack, for any principles involved and how it can be altered to improve it. Ask them how they believe this will truly solve the problem for all concerned.
Treat the “suggestion” as one option and present others, along with accompanying objective standards. Invite criticism to your own suggestion and try to apply the criticism in an effort to modify it somewhat. You can use their negative comments to explore underlying interests. This actually converts criticism into a process of working toward an objective. You may ask them what they would do if they were in your situation to attempt to create more understanding on their part.
Even an attack on you personally can be turned into an attack on the problem. Listen carefully to their comments to let them vent their feelings. See if you can find some underlying principle in their attack, something that indicates a wish for a positive outcome. You may discern that they actually care about the future of their children, for instance, or that they do wish to be fair on some level.
In mediation jujitsu, instead of making statements, use questions instead. This will stimulate conversation and eliminate most of the attacks that result from statements. Questions can lead the other side to confront the real issue, since the questions do not criticize them. The questions allow them to respond, to evaluate or correct assumptions.
Sometimes silence is the best answer. For instance, if the other side has come forward with an obviously absurd proposal or attack, sometimes silence is effective. Since they know it is without merit or basis in fact, your silence can make them uncomfortable. They will usually start to backtrack, clarifying or revising their comments.
Another instance where silence can be the best answer is when asking questions. Do not let them off the hook by answering for them or otherwise supplying both ends of the dialogue. They will feel compelled to answer your question or counter with another suggestion.