“. . . Everybody wants a thrill
Payin’ anything to roll the dice
Just one more time
Some will win
Some will lose
Some were born to sing the blues
Oh, the movie never ends
It goes on and on and on and on. . .”
(“Don’t Stop Believin’”, Journey© 1978)
In mediation, the subject of what will happen if the dispute does not settle almost always comes up. In negotiation lingo, this issue is known as BATNA — Best Alternative To A Negotiated Agreement — a term coined by Roger Fisher and William Ury in Getting To Yes: Negotiating Without Giving In (1981). If the dispute is in litigation, one of the consequences or BATNA’s to not settling may be going to trial. Both the mediator and counsel will invariably discuss the positive and negative aspects of trial. But, chances are their own discussion will be more sophisticated and not nearly as lyrical nor as cryptic as Journey’s song: “Everybody wants a thrill. . . some will win, some will lose. . .oh the [trial] never ends. . . it goes on and on and on. . .”
I do not write this tongue-in-cheek but in a serious vein. I read these lyrics the other day and suddenly realized they apply equally to a trial: Some will win, some will lose . . and trials can go on and on and on. . . . Just think about all of the appeals and remands.
The purpose of mediation is to resolve the issues: to obtain certainty in the results, to take the “. . . roll of the dice” out of the situation, to stop the movie from going “on and on and on. . . .”
Without knowing it, Journey pinpointed what BATNA is all about, in words that we can all understand. . . .and to a tune that we can all hum.
. . . Just something to think about.