Written by My Collaborative Team President, Edward S. Sachs
BATNA (Best Alternative to a Negotiated Agreement) refers to the alternative course of action that a party can take if negotiations fail. While litigation is one possible BATNA in Collaborative divorce negotiations, it is not the only option.
In a Collaborative divorce, the emphasis is on reaching an agreement through cooperation and negotiation rather than resorting to litigation. However, parties involved in a Collaborative divorce may still have alternative options to consider if the negotiation process breaks down. Some potential BATNAs in a collaborative divorce negotiation could include:
- Mediation: If collaborative negotiations stall, the parties may choose to enter mediation, where a neutral third party (preferably Collaboratively trained) helps facilitate discussions and reach an agreement.
- Arbitration: In some cases, couples may agree to use arbitration as an alternative to litigation. In arbitration, a neutral arbitrator makes decisions on disputed issues, which can be binding or non-binding depending on the agreement. This can be a useful alternative when there is a single issue that is stalling negotiations.
- Negotiation Outside of Court: Parties can continue to negotiate outside of the Collaborative Process, with or without the assistance of attorneys, in an attempt to reach a settlement.
- Reconsidering Settlement Terms: Parties can also reevaluate and potentially modify their settlement proposals during the negotiation process, seeking creative solutions to address concerns and reach an agreement.
The key idea in Collaborative divorce is to prioritize cooperation and amicable resolution, but it's essential for individuals to be aware of their BATNAs and consider other dispute resolution methods if the Collaborative Process is unsuccessful. It's always advisable to consult with professionals who can provide guidance on the most appropriate course of action based on the specific circumstances of the divorce.
