Of all the divorce mediation tips I could write about, knowing your BATNA is number one. You may think should I mediate, or should I litigate my separation and divorce? In terms of negotiating, knowing your BATNA can make a lifetime of difference for you and your children. A well-developed BATNA could save you from spending thousands of dollars on legal fees, and spending months or even years being tangled in the legal process and will also help protect you and your children’s emotional wellbeing.
Knowing your BATNA is critical for deciding between mediation and litigation. Without knowing your BATNA, you cannot make an informed decision about whether to mediate or go the lawyer route. Unless you know what your end costs are in money, time engaged in the process, stress, and time away from work, you are putting yourself and your family in jeopardy, causing a negative emotional impact on you and your children.
In simple terms, look at your BATNA as if you were buying a car. One dealership is offering a used car for $8,500, but down the street another dealer is offering a better car for only $7,500. The $7500 dollar car is your BATNA.
Your BATNA is there to help prevent you from choosing an unfavourable process. Often issues arise when you reject certain options without learning about their potential benefits and attributes. Having a good BATNA increases your personal power and confidence for making an informed decision. The mediation process is there to help you produce something better than what would have been obtained had you chosen to go with a lawyer, or chosen to take the matter to court.
First, what does BATNA stand for? It is the ‘Best Alternative To a Negotiated Agreement’ and this is the standard against which any separation and divorce process must be measured.
Now, let it be known that this is not some flashy marketing acronym we have dreamed up here at Divorce the Smartway. It is actually a term coined by Harvard Law Professors Roger Fisher and William Ury and discussed in their 1981 blockbuster bestselling book, Getting to Yes: Negotiating Without Giving In.
Why is it important to understand the alternatives for separation and divorce? Ask yourself this, would you rather mediate a separation allowing you to remain in control, or go the lawyer route and possibly head to Family Court and a judge to make your decisions for you?
It is crucial to understand the difference between a BATNA and an EATNA which is unfortunately how most people get caught in bad situations.
EATNA is the ‘ESTIMATED Alternatives To a Negotiated Agreement’. The difference here comes between actually having all the facts, and assuming you do. Your EATNA is only a perception of what the rights-based or power-based choice like lawyers and Family Courts can deliver for you. Often, former spouses who should really consider mediation, get caught in the idea that the court or lawyers can grant them the outcome they want in their separation, but this is often not the case.
Thinking that the judge will side with you over your spouse, and that you will prevail because your case is stronger than your former partner’s is a dangerous mentality and only helps to reinforce why a BATNA is so important. Family Court outcomes are historically proven to be very uncertain and can lead to unbalanced and unfair judgments for both parties regardless of the strengths and weaknesses going in.
Mediation helps to eliminate the uncertainty inherent with the Family Law system today. Mediation is there to create a soft landing for you and your children, and does so in a much easier, quicker and a less expensive fashion. Mediation means knowing, and gives you the power to write the next chapter in your life.
Lawyers and Family Court is guessing, and means you are handing your future and well-being over to someone else who has never met you or your children, has no real feel for your needs and may not agree with how you see things. Isn’t knowing always better than guessing?
Let us help you develop your BATNA and provide you with a soft landing in your separation and divorce.
Ken S. Maynard is a mediator and a Certified Divorce Financial Analyst (CDFA) who specializes in comprehensive, cost effective full service mediation resulting in a separation agreement.
About the Author:
Ken Maynard CDFA, Acc.FM
I help smart and successful couples, create separation agreements with clarity and soft landings for secure futures, in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs. You can work with me by video conference or with a DTSW associate at any of our 6 DTSW Greater Toronto mediation centers, including | Aurora | Barrie | North York | Vaughan | Mississauga | Scarborough.