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by Phyllis Pollack

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

“. . . 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.    


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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