Absence of a Better Alternative To Sample Clauses

Absence of a Better Alternative To a Negotiated Agreement (BATNA) The willingness of parties to reach compromise will also be more likely where a stalemate or impasse has been reached between the parties.126 An impasse implies that neither party should have the ability to unilaterally achieve their objectives through alternative channels whether they be power based (political, repressive, demonstrations etc) or rights based (litigation). If a party believes that a “Better Alternative to a Negotiated Agreement”(BATNA) exists then they will possess little incentive to compromise. In this respect there should be, at the least, uncertainty about the possible outcome of pursuing resolution of the dispute through other judicial or administrative channels.127 Where, moreover, parties stand to suffer adverse consequences if a stalemate or impasse continues, then the requisite motivation to undertake mediation will most likely be present. Of course, the possibility of adverse consequences is dependent to a large extent on the existence of a functional system of administrative and judicial environmental law enforcement. The threat or prospect of litigation often provides the most direct incentive to mediate, a phenomena termed “bargaining in the shadow of the law”. Where law enforcement is xxxxxx, and the law casts little ‘shadow’, the more powerful disputant may not be compelled to undertake mediation.