Originally from Alternatives to the High Cost of Litigation

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BATNA–the best alternative to a negotiated agreement–is the most favorable possible outcome if the parties don’t settle, right?

Wrong.

This is a common misconception about a commonly used term. See John Lande, “Confusing Dispute Resolution Jargon,” Indisputably.org (Jan. 4, 2018) (available at https://bit.ly/4hc9q6o).

Roger Fisher and William Ury coined the term “BATNA” in their book, Getting to Yes, which is required reading in many law and business school courses and is a popular book for general audiences. There are more than 14 million hits for BATNA on Google.

This month’s Theory Meets Practice column describes how people frequently misunderstand and misuse this concept, and it offers suggestions for better understanding and techniques. It focuses on attorneys’ perspectives in mediation of substantial cases in U.S. pretrial litigation, though the same logic generally applies in unmediated negotiation.