Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>What is Your Best Alternative?</xTITLE>

What is Your Best Alternative?

by Tony Dempsey
December 2013 Tony Dempsey

Negotiation 101 tells us that we must develop a clear understanding of what our best alternative is to negotiating an agreement (“BATNA”) in advance of the negotiation in case the impasse cannot be overcome. A negotiator’s BATNA is the course of action or, if you like, the path he/she will take if a resolution to the impasse cannot be reached through direct negotiation.

But just how does one go about developing their BATNA, or their Plan B, as I like to call it? How does one then evaluate their BATNA? All too often I see parties who cannot break an impasse wind up in court simply because they hadn’t done the homework up front to determine accurately what their best alternative is.

You can best develop Plan B by enlisting the support of trusted colleagues to brainstorm the options available to you should the agreement you want not be reached. Whilst the obvious alternatives are to go to court, do nothing or “roll over” and accept the other party’s demands, none of those alternatives are particularly satisfying. However with some lateral thinking amongst like-minded people who seek to “expand the pie” rather than distribute an existing piece you can often develop innovative alternatives that are far superior to the default position.

Once you have exhausted the alternatives available through group brainstorming then its advisable to carry out a SWOT analysis on each of the options agreed and then rank them in order of priority using a simple priority-ranking tool. An example of a simple priority tool in action is to have each person in the brainstorming group allocated a total of 100 points with the instructions to allocate the points to the various alternatives in a manner which sees the individuals most valued alternatives given the highest points and the least points to the least valuable alternative. Once you know the alternative with the most points from the entire brainstorming group you know what is the most valuable alternative. This is your BATNA – or Plan B.

Recently I mediated a dispute between a partner of a large accountancy firm and the firm’s remaining partners. As a partner for some 12 years the accountant was discouraged to learn that the remaining partners wanted him ‘moved on’ for a variety of reasons. The aggrieved partner had a mortgage, private school fees and despite his feelings of resentment towards the other partners for not appreciating his work wanted to stay on for fear of not being able to meet his financial commitments elsewhere. The parties had tried to negotiate a solution through direct negotiation however things had reached an impasse and so Wisdom was called upon to help the parties try and find a solution.

During the private session with the aggrieved partner I was staggered to learn that the only alternative he had considered if the remaining partnership would not provide him significant financial compensation was to “sue the bastards” for wrongful dissolution of the partnership.  He had neglected to consider and evaluate other options. It was clear his needs were financial security and yet he had not stopped to consider how those needs might be meet beyond simply litigation. His Plan B was hastily conceived. The firm’s remaining partners was also devoid of lateral thinking and their BATNA was to simply gear up for a strong defence of the impending court case.

Had both parties undergone a process similar to that mentioned earlier then their BATNA’s might well have included a course of action quite different to litigation.

Fortunately through the process of mediation the parties were able to undertake an evaluation of other options and ultimately secure a deal which saw the aggrieved partner leave the firm peacefully in the knowledge he had the unfettered right to contact and service those clients of the firm he had previously served – without restraint. His needs in securing long-term financial security were met. The remaining partners were able to avoid a potential costly drawn out litigation battle and possible damages award against them whilst also maintaining the right to market to the same list of clients.

Biography


Anthony Dempsey began his career specialising in banking litigation with national law firm Clayton Utz in 1990. Tony was the founding President and CEO of the Rugby Union Player’s Association (‘RUPA’) in 1995. He negotiated and secured on behalf of its members (the Wallabies and Super Rugby players) in 1997, 2001 and again in 2004 Collective Bargaining Agreements (‘CBA’) with their employers. These agreements regulated the employment conditions of the players. The 1997 CBA was world rugby’s first and represented a watershed in industrial relations in professional rugby worldwide.

During his time with the RUPA between 1995 and 2009 Tony was instrumental in resolving many complex high profile industrial, commercial and contractual disputes between the Associations members and their employers through a variety of methods including negotiation, mediation, conciliation, arbitration and litigation.

Tony was appointed founding Chairman of the International Rugby Players’ Association Inc in September 2001 – an organisation whose members comprise player associations from France, England, South Africa, New Zealand, Wales, Ireland and Australia. IRPA represents the employment interests of international rugby players worldwide on issues common to them – a position he held for four years.

Tony holds both a Bachelor of Law and Economics from Macquarie University (1990). Tony has completed at the Australian Graduate School of Management the Senior Management Development Course and the Advanced Negotiations Skills Program. Tony is also a accredited mediator with the Australian Commercial Disputes Centre.

Tony is a adjunct presenter at the College of Law NSW for the workshop "Negotiation and Alternative Dispute Resolution".



Email Author
Website: www.wisdomdr.com.au

Additional articles by Tony Dempsey