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One parent wants to have the two children (aged 6 and 8) six days a week with the other having no sleepovers. The other parent wants the children from Tuesdays after school until Wednesday morning when the children go to school plus every Friday through Saturday at 6:00 p.m. How should each party look at this in mediation or in litigation.

Mediators often talk using a BATNA in order to help the parties consider how far to negotiate this issue.  A BATNA is the “best alternative to a negotiated settlement”. In the above fact pattern, if the parties cannot negotiate and compromise, what is the likely outcome?

If parties cannot reach a resolution either through mediation or negotiation, a Judge will make the decision. Unless the first party can provide evidence that the other parent should only have one day a week without sleepovers (proven child abuse, proven drug/alcohol abuse, etc.), a Rhode Island Judge will not be likely to support that radical position.  A Judge would more than likely indicate that children need both parents for a healthy upbringing.

Therefore, in using the above example, the first parent should understand the BATNA regarding a parenting plan (the Judge’s decision) and be open to negotiating a more reasonable parenting plan.

A BATNA will also apply to the financial equitable distribution aspect of a divorce as well. I have worked with people who rely upon their favorite aunt of friend and come to mediation saying that they will accept no less than 70% of the assets plus alimony (even if that party is currently earning a reasonable income though not equal to the other parties’ income). That person needs to weigh that position against what a Judge may order based upon the facts of the case as presented by both parties. A Judge may order a 50/50 split or a 55/45 split. So, negotiating from a 70% to a 60% or 55% may be appropriate to avoid the large financial and emotional expense of a contested trial. Clearly, people with an agenda for trying to hurt the other person will not care about a BATNA as their anger outweighs the realities of the situation.