By Paul Godin

One of the tools that can be very effective at generating flexibility from the parties in workplace mediations is the strategic use of BATNA (the Best Alternative To a Negotiated Agreement) to improve rational decision-making by parties in mediations. One’s BATNA in a negotiation is the best course of action that one can take unilaterally (without the consent or cooperation of the other side) if the negotiation fails to reach a resolution.

In other words, BATNA is one’s Plan B. Decision analysis is the process of comparing the rational choices one has in a conflict or negotiation—between what a party can do with the other side (the proposal on the table), and what that party can do without the other side if there is no agreement (their BATNA).

Mutual Agreement Often Challenging
In some mediations, parties lock into positions and bog down, making a mutually agreeable resolution harder to reach. Parties become positional for a wide variety of reasons. They may believe that they are right. They may not like the answer on the table. They may be fixed on a pre-set expectation, whether reasonable or not. There may be an important principle at stake for them. They may be concerned about looking weak or losing face. They may simply be trying to get the other side to give in.

Two dynamics can make workplace mediations particularly challenging to resolve. One is that in unionized environments employees may feel they have nothing to lose because there is no personal financial cost to them in proceeding to arbitration. The employee may feel they have nothing to lose by saying ‘no’ and trying their luck with the arbitrator. The union will normally cover the procedural costs. So, if the proposal on the table seems worse than what an arbitrator might award, the employee may say no and walk away.
Second, on the management side, some managers believe they can simply impose the answer they want because of their power and position. They may not be worried about the risk of arbitration because they know they will ultimately end up back in their own department, in control.

With all of these difficulties, an effective and fulsome BATNA analysis by the mediator with each party can open up new flexibility and bring parties back to the table in search of a rational resolution.

Why Discuss BATNA
There are several reasons to work an effective discussion of the parties’ respective BATNAs into workplace mediations in an appropriate way.

One is that parties are often inflexible because they haven’t thought through the consequences of not reaching an agreement. Some have not considered their plan B at all, and some have only given it superficial thought without considering all of the ripple effects if they say no to a deal.

If a party recognizes that their plan B is not as good as they originally thought, they will often be more flexible on the issues. (If I can do better with you than without you, I will work on a deal.)

Second, if Party X recognizes that they may need Party Y, they will deal with Party Y more respectfully. Most of us will not disparage someone we may need. A consequent increase in positive attitude and communication between parties can dramatically increase the chance of getting a resolution. It also helps maintain good working relationships back in the workplace.

When to Discuss BATNA
There are two primary windows during which it makes sense to have a BATNA discussion with parties in a workplace mediation.

I strongly recommend a thorough discussion of BATNA in caucus with each party individually before ever bringing the parties together in a joint session. Ideally, having these discussions at least a day before the joint session will give parties time to properly digest the ramifications of the discussion.

If parties know before the joint session just how badly they need the other person, they will adapt their approach at the table accordingly. Typically, they are more respectful, more flexible, and less likely to burn bridges. If they understand the risks to themselves of damaging the relationship, they are more likely to avoid inflammatory comments. Once you have called your boss “incompetent,” for example, that relationship is damaged forever. If the comment is prevented by getting people to think about consequences in advance, a future is possible.

A second time for discussing BATNA is when one or both parties have started to lock in and are refusing to budge. If they analyze their BATNA and realize that walking away from the table takes them to a course of action (Plan B) that does not feel good, they will likely return to the table with renewed flexibility.

How To Discuss BATNA
In general, discussion of BATNA should only be done in caucus, so that the discussion can be full, frank and without fear of giving ammunition to the other party.

In my experience, a facilitative approach to discussing BATNA is the most fruitful. By asking good, open-ended questions, a mediator can help parties do a rational self-assessment of what their Plan B is, and how good it would actually feel.

As mediators, we can ask them what their alternative courses of action are. (What will you realistically do if you don’t reach a deal?) But more, we can ask questions to reality test how good those routes actually feel. Most people have not considered the true or full consequences of the choice to walk away from the mediation table.

Reality-Testing Questions for Employees
Employees, for example, may feel like they have nothing to lose if they push on to arbitration. In such a case, good reality-testing questions include ones like:

• If you win at arbitration, what will the relationship with your manager be like when you go back into the workplace? Will they be happy with you?
• How important is a good relationship with your manager? Do they have influence with others?
• If your boss is unhappy with how you approach these issues, can they impact your career negatively in any way? Will they open the same opportunities for you going forward?
• What happens if you lose at arbitration? What is the chance you could lose? What is the impact on your reputation in the organization?

Reality-Testing Questions for Managers
Managers may feel like they can impose their decision-making power, without worrying about consequences. Good reality-testing questions for managers include:

• Do you need this employee? Their skills? Their experience? Might you need their willing cooperation later for future projects? Could you lose them if you don’t resolve the issue?
• Even if you win at arbitration or just impose your desired answer, can they or their colleagues push back on you? What might that look like?
• What will the morale of your team be if you don’t resolve this in a mutually-agreeable way? How could that impact you? What will your bosses think of you if your team is in turmoil?
• If parties still decide not to settle, they will at least do so understanding the true realistic consequences, making a rational choice rather than just a blind or willful guess.

Good workplace mediators work BATNA appropriately into the conversation, so parties are making rational choices between a) the best thing they can do with one another at the table, and b) the best thing they can each do unilaterally if they walk away. Given the many negative consequences of not reaching a resolution, many parties realize that good faith efforts to resolve matters are worth trying. Skilled mediators use BATNA to open up flexibility and keep parties exploring win-win options wherever possible.

Paul Godin, a member of CPHR BC & Yukon, is the principal of Katalyst Resolutions, a dispute resolution training and service provider based in BC but operating globally. Formerly a lead trainer and course designer for the Stitt Feld Handy Group, Paul is a world-recognized mediator and trainer and the author of the chapters “A Practical Guide to Conflict Management System Design” and “Principles of Negotiation” in The Alternative Dispute Resolution Practice Manual. He can be reached at paul@katalystresolutions.com and www.katalystresolutions.com for more information.