November 29th, 2022
Preparing for Mediation: Define Your “BATNA”
BATNA is a concept that originated from a 1981 non-fiction book on negotiation principles, Getting to Yes: Negotiating Agreement Without Giving In. The acronym stands for “Best Alternative to a Negotiated Agreement.” Defining your BATNA means considering your best available option if negotiations with someone else fail. The concept prompts you to answers the questions:  what is the minimally acceptable outcome for me, and  what is my course of action if that outcome isn’t offered?
Considering your BATNA will help in all sorts of negotiating scenarios, not just in lawsuits. However, the BATNA concept is especially useful when a case is ripe for mediation.
Mediation is a process whereby parties to a lawsuit meet with a neutral professional to determine whether they can agree to a mutually acceptable resolution. Each side presents the mediator with their position on the case’s merits. In turn, the mediator’s objectives are to encourage the parties to fairly assess the case’s strengths and weaknesses, clarify the disputed issues, and seek concessions from each party such to reach an agreeable settlement.
Defining your BATNA before the mediation will allow you to optimally negotiate your position. Your attorney should explain to you the range of likely outcomes from settling your case at mediation, taking the case to trial, or exploring settlement after further litigation.
Understanding your alternatives to a negotiated agreement has enormous benefits and will prevent you from undermining your position at mediation. In other words, you will be less likely to become  inflamed by your adversary’s paltry offer;  intimated by information the adversary discloses; or  overly excited by an offer that is less than what your case is worth.
Note that your counsel has no obligation to tell the mediator your BATNA (although doing so can sometimes be useful as the mediation progresses). Likewise, the counterparty will not disclose the maximum amount that it would be willing to resolve the case in lieu of going to trial. Mediations nearly always require several rounds of demands and offers before the parties begin to reveal their respective positions. Patience and preparation are key to ensuring the best possible result.
Once you identify your minimally acceptable outcome and the point at which you can confidently walk away from the negotiating table, you and your attorney will navigate the mediation with ease.