Blog

A significant step in preparing for mediation, or any negotiation, is the calculation of the party’s Best Alternative to a Negotiated Agreement (“BATNA”). Most lawyers I work with have had a discussion with their client about the alternatives to settlement.  In this blog and in my paper on preparation (downloadable here), I urge counsel to apply this concept not only to your BATNA but also to the other side’s position, even if you cannot know their perceived BATNA. Recently, I read a fantastic article by UK-based mediator Bruce Greig explaining what Nassim Nicholas Taleb called the Ludic Fallacy in his book “The Black Swan.” According to Taleb, the Ludic Fallacy is the “the misuse of games to model real-life situations.” In his article Greig explains how to make mathematical models of risk assessment but also the pitfalls of too heavy a reliance on those models.  The article is worth reading

In spite of the headline this blog is not suddenly offering relationship advice.  Sadly, I see insights into negotiation and mediation everywhere.  That must be explainable by some known cognitive bias but that’s not the point.  This article on relationships popped up in one of my feeds and its lessons for the negotiator are obvious. People (and mice, and rats) over-value sunk costs in their decision-making processes. Time for us to value the future more. Citing a 2018 research paper published in Science magazine “researchers found in experiments on mice, rats, and humans that the higher the sunk costs in a situation, the stronger their will became to keep pursuing a desired result. The paper describes this tendency as a ‘cognitive bias [that has] persisted across evolution’ despite its relative lack of utility in good decision-making.” In mediations, whether as an advocate or as a neutral, I often see this

It is the rare successful mediation that does not lead one party or both to wonder whether they could have gotten more or given up less. What makes mediated settlement conferences so interesting (and difficult) is the need to make important decisions in a confined period of time without knowing what the other side is willing to accept or give up in exchange for peace. If both sides came into the mediation and stated honestly their bottom line from the outset there would be little need for mediation. Obviously this never happens and in most cases I have been involved with the parties do not really know their bottom line themselves at the outset of mediation. How can anyone be expected to figure out the other side if they cannot figure out their own position. Do good negotiators have a natural ability to sense where they can take the other