BATNA and WATNA
A common problem we see in disputes is a party not knowing what their BATNA and WATNA is. By that we mean their best alternative to a negotiated agreement (BATNA) and their worst alternative to a negotiated agreement (WATNA). They have no idea what could happen if they went to court. Yet, they are certain that they are right. They are certain that the judge will be on their side. But this is typically founded on little more than emotions. Any sense that they are ‘in the right’ or are ‘being more reasonable’ is based largely on what they’ve seen happen to others, on a newspaper report or what their friends and family tell them.
The term ‘legal entitlement’ is often misunderstood
For example, some of those going through divorce believe that they are legally entitled to 50% of their joint assets. On the other hand, some others believe that they are entitled to a larger share of the assets. The truth is, the only legal entitlement they have is to claim a share of any property. If the law really said that assets should be shared in a specified proportion, why on earth would there be a need for judges?
Fairness is not the measure of a proposal
Another example is disputants who think that because their lawyer has told them that their proposal is fair. Because of this they think it must mean that their spouse’s proposal must be unfair. This misjudgement encourages them to think that they will win in court. Big mistake. Just because a proposal is fair does not automatically make the other proposal unfair. Besides, in divorce financial remedy cases, there is nothing in the relevant legislation that mentions the word ‘fair’.
So what’s the solution? The solution is to know your BATNA and WATNA. In other words, what, realistically, is the best outcome if you went to court, and what would be the worst outcome. Knowing this range of outcomes can be critical. Without knowing them, you could end up accepting an offer you ought to reject. Equally, you could end up rejecting an offer you ought to accept.
Get your BATNA and WATNA advice in writing
So before you decide to spend tens of thousands of pounds pursuing a court case, you might want to spend a few hundred pounds on understanding the likely outcome. Instruct your lawyer to provide you with your BATNA and WATNA in writing. It’s not good enough for them to tell you “You are likely to get X”, “You deserve Y” or “Your claim is entirely reasonable”. None of these will help negotiate a settlement. Nor will they make it certain that your money won’t be wasted with a court application. A BATNA and WATNA will.
At Start Mediation, we frequently recommend to clients that they get this advice from their lawyers. They are usually in a position to do so once we have helped them gain a full understanding of what the value of their assets, liabilities, incomes and expenditure are. It’s also important that they each know what they and the other are going to need going forwards. If your lawyer can’t provide them, find one who can. Your future may depend on it.