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Mediation Tip: Mediation vs Litigation?

One of the essential principals taught to all mediators and negotiators is BATNA, which means "Best Alternative to Negotiated Agreement". In some cases one side or the other makes outrageous demands or offers and refuses to move much off of them. Such posturing makes it easy to say that litigation is the "best alternative" to settlement. Fortunately, most cases do settle at mediation, or soon thereafter. But the getting there may have some uphill moments despite, relatively speaking, reasonable moves on both sides. I mediated several recent cases which were "pre-litigation" or early in the litigation. Most of these cases settled at mediation. In one, the plaintiff still held a lot of anger and emotion and wanted to proceed with litigation. My colleague Andrew Albert and I co-authored an article on early mediation addressing the pros, cons and preparation needed. One of the important issues we cite to is the parties' readiness to resolve, to put the case behind them. Sometimes a party has not experienced sufficient "pain" from the process, or not had enough time to get past the quest to avenge "justice". While we as neutrals may easily see how a reasonable settlement is the "best" alternative to litigation, the parties may not yet be in a place to accept it. Sometimes, despite all outward signs pointing to resolution being the best choice, a person is just not ready for it. If so, and if there is no room for putting the case on hold, then, perhaps, litigation is the best alternative….at least for awhile. The key then is for the mediator to remain engaged in the process with continual follow up, to help when it is the "right time" to resolve.

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