when is mediation a bad idea

Trump vs Times

I spend a good portion of my time telling people about how mediation is a good option for resolving nearly all conflicts. I know you are asking when is mediation a bad idea? Is mediation ever a bad idea? Like all good rules there are some exceptions. Rarely mediation can be a waste of time.

When is mediation a bad idea?

The exchange between Donald Trump’s attorneys and the attorney for the New York Times provides an excellent example of one such exception to the utility of mediation. In this post I will share with you how mediation is a poor choice when one party benefits from another party not having an agreement

The Story

First some background, recently the Post ran an article titled Two Women Say Donald Trump Touched Them Inappropriately in which two women claimed Mr Trump touched them inappropriately. (the title was a bit of a spoiler) In response to the article Mr. Trump’s lawyers wrote a letter demanding a retraction and threatening legal action for libel. The Times responded with a letter that refused to retract as the event was newsworthy and was protected speech. The Times letter was published and has generated viral sharing and has been covered as news by multiple traditional media outlets.

In this case the two sides have diametrically opposed positions and values. Having incompatible interests is not in itself a good reason not to mediate. Differences are normally what leads to conflict so it is no reason to give up. The value the Times sees in not having an agreement makes a mediated settlement impossible. While Trump’s lawyers started this fight in private it is now very public and Trump himself needs public opinion to get elected. He may find value in a range of potential negotiated arrangements, but Trump needs to ask himself how whatever possible value that flows from negotiations (or mediation) with the Times will compare to his best alternative to a negotiated agreement (BATNA). The Post values the story and values the public dispute and the potential a court would affirm their position.

Trump’s Choices

Trump’s choice are litigate, don’t litigate or negotiate. Litigation may mean vindication, but it also means negative publicity. Not litigating means no ruling and the story remains but becomes less newsworthy. While Trump is aware that negotiations could have a range of possibilities it seems unlikely that the post would retract the article.

Times’ Choices

The Times can retract or not. Retraction would prevent the lawsuit but would also violate their mission as a news outlet. Not retracting the article raises the chances of getting sued, but since they have leveraged a public response that basically taunts Trump and his lawyers it may be that getting sued and the media coverage of their story would actually benefit them due to increased readership. They represent to Trump that they are confident in their case but in this case either of the potential alternatives that Trump exercises causes them further benefit. Their interests are served by trump exercising either of his two alternatives to negotiations and accordingly they have no reason to participate in negotiations.

So What???

The BATNA principle normally tells people when not to take an offer. It guards against agreements that one should not make. In this case the Times can compare their BATNA to their best possible negotiated agreement (BPNA) and see that their BATNA is superior.

Be Careful

When figuring your BPNA is worse than your BATNA you need to exercise caution. One of the benefits of mediation is its ability to help the parties find new value. This means that neither party may fully realise the potential value of a negotiation prior to the negotiation. Exercising your BATNA almost always involves some risk

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