PGP Mediation Blog by Phyllis G. Pollack
A few months ago, I attended a board of directors meeting of the SCMA Education Foundation. At the meeting, the president started talking about "S.W.O.T. Analysis". Not having majored in business, I had no clue to what she was referencing.
I have since learned; S. W.O.T. stands for "Strengths, Weaknesses, Opportunities and Threats." According to businessball.com, this type of analysis was developed in the 1960’s by Albert S. Humphrey and "… is an extremely useful tool for understanding and decision-making for all sorts of situations in business and organizations…. The SWOT analysis headings provide a good framework for reviewing strategy, position and direction of a company or business proposition, or any other idea." (Emphasis original.). (Id.)
Evidently, the S. and W. (I.e. Strengths and Weaknesses) refer to internal factors while the O. and T. (i.e., Opportunities and Threats) refer to external factors.
Thus, as explained on Mindtools.com, under "Strengths" one might ask "what advantages does your organization have?" or "What do you do better than anyone else?" while under "Weaknesses", one might ask "What could you improve?" or "What should you avoid?" Similarly, for "Opportunities", you might ask, "What good opportunities can you spot?" or "What interesting trends are you aware of?" while under "Threats", you might consider, "What obstacles do you face?" or "what are your competitors doing?" (Id.)
So… what does S.W. O.T. have to do with negotiation/ mediation? Well, evidently, a mediator in Florida, Brandon Peters of imMEDIATE RESOLUTION has applied this business tool to mediation ( aka negotiation) analysis. It is a different but eye-opening way to analyze the risk of trial versus settlement. Thus, on his work sheet, he lists under "strengths and weaknesses" various factors with check boxes to indicate whether each is"strength" or a "weakness". Factors include venue, right to a jury trial, professional background of the judge, opposing counsel’s experience, fact finder’s perception of client, witness credibility, applicable law, litigation costs, balance of power between parties, collectability of judgment and client’s sophistication. Additional space is provided to note any other "strengths" or "weaknesses". (Id.)
Interestingly, the "O." in Mr. Peters’ analysis stands for "Options" rather than "Opportunities" and under it, he lists several questions, including whether any motions are available that can change the ultimate outcome of the case?, are there any themes that may "resonate" with the finder of fact?, "does your client require confidentiality to protect its reputation?", "are certain settlement terms available only through mediation?" Or are there alternative ways to settle this matter than by exchanging money such as discounting future orders? Et cetera. (Id.)
Again, for the "T.", Mr. Peters substitutes "Truths" for "Threats", and poses questions such as " Is the trial/hearing outcome reasonably predictable? ", " Is your client facing an all-or-nothing outcome at trial/hearing?" "Do any key witnesses have an admissible criminal record?" "Do you know how the presiding judge(s)/arbitrator(s) have ruled in similar cases?" "Is your client able to prove each element of every claim or defense?" and "Will your client be required to spend significant time away from family? Work?" (Id.)
Mr. Peters offers a valuable means for parties to take a long hard look at their case before and during mediation. If each party to a mediation spent a few moments answering the questions on this worksheet, each would, in effect, conduct his/her own "reality" check" and be more amenable to settling on realistic terms.
…. Just something to think about.