As a general rule, it is advisable to develop the analysis in a private meeting with each of the parties and their lawyers. Those who do not welcome the analysis will be more likely to participate in private. In addition, parties and counsel in a confidential caucus tend to question their alternatives and make them more realistic. If not faced with the need to face the other party or the fear of losing face, many lawyers do welcome the opportunity to inform their clients about the risks of the case with the support of the Ombudsman. If the Ombudsman believes that the parties would also benefit from a convincing presentation on the results obtained by the opposing legal counsel, the analysis may still be discussed at a subsequent joint meeting. Note: Even if they are developed in private and confidential meetings, mediators should not consider that the parties or lawyers are fully interested in their alternative analysis. The following graph shows the best alternative for each party to a negotiated agreement (seller and buyer): in this case, there is a potential agreement area – $6,000 to $7,500. Somewhere in this area, the two sides should be able to agree. In some cases, a party will reject a proposed decision, although the likely alternatives are significantly less attractive to the “business” sense.
However, the exercise is always useful in this case because: Sometimes Dendamit lawyers claim that they have done the analysis with the parties, but say they do not want to share it with the Mediator. This too, like any other tool, can be studied and negotiated in the process. Even if lawyers have refused to share their own thoughts with the Mediator, the Mediator can obtain useful information by sharing their own or estimating the other party on a number of possible outcomes and noting how lawyers react or correct them. Colin needs a car and negotiates with Tom to buy his car. Tom offers to sell his car to Colin for $10, 000. Colin searches Craigslist and finds a similar car to which he attributes a value of 7,500 dollars. Colin`s BATNA costs $7,500 — if Tom doesn`t offer a price of less than $7,500, Colin will consider his best alternative to a negotiated contract. Colin is willing to pay up to 7,500 $US for the car, but ideally he would only pay $5,000. The relevant information is presented below: the purpose of the analysis is to help the parties make informed decisions about possible solutions or an agreement.
It is almost always useful to compare possible outcomes in other ways with concrete proposals that are on the table during a negotiation before a decision is taken in the negotiations. If an alternative seems very attractive and very likely, a party may reject a proposal that is much less satisfactory. On the other hand, if the options proposed in the negotiations are reasonable or better compared to the likely alternative outcomes, one party may feel more comfortable accepting a proposed agreement. The analysis helps the parties decide whether a particular resolution is in their best interest or not. It also helps intermediaries to bring into the world parties in reality and to avoid a dead end by focusing them on real possibilities and not on unsted dreams. If the best alternative to Tom`s deal is to sell the car to a dealership, which would offer him $6,000, then both parties can agree because Tom`s reservation point would be $6,000.