Negotiation Videos

Good videos depicting lawyers in a transactional negotiation. These videos show tactics for exploring interests, identifying BATNA, and anchoring positions. The videos are by Professors Dwight Golann (Suffolk University Law School) and Marjorie Corman Aaron (University of Cincinnati College of Law).

Best Alternative To a Negotiated Agreement (“BATNA”)

The Best Alternative To a Negotiated Agreement (“BATNA”) is an important concept in negotiation. BATNAs in Negotiation: Common Errors and Three Kinds of ‘No’ by Harvard Business Professor James K. Sebenius elaborates. The abstract:

The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991) as well as many later interpretations can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First, early characterizations could be easily read to imply that one’s BATNA could not itself be a negotiated agreement. Second, and more seriously, common descriptions of one’s BATNA as the “best outside option, independent of the other side” needlessly limit its applicability, especially in the many bargaining relationships in which BATNAs are inherently interdependent. Third, BATNAs are often mistakenly described mainly as “last resorts” relevant only in case of impasse or “if the other side is more powerful.” Other uses of the term “BATNA” such as the common question, “How do I negotiate if I have no BATNA?” reflect misconceptions. Although savvy negotiators and analysts generally avoid these pitfalls, the less sophisticated can go astray. This article offers robust correctives to these misimpressions and relates these to three different kinds of “no” in negotiation: a “tactical no,” a “re-set no” that permits away-from-the-table moves to favorably alter the underlying setup, and a “final no.”

Negotiation by Consumers: Haggling for a Better Price

Techniques from the Harvard Law School Program on Negotiation

BATNA Difference?: Negotiating in Good Faith in Civil Law Countries

Negotiating in Good Faith: Walking Away to BATNA Under the Civil Law,

by Professor Gregory Marsden:

This paper examines the concept of BATNA and whether we may validly advise negotiators outside the common law world to cease negotiating if the expected outcome does not exceed their previously-determined BATNA. Such advice is commonplace in negotiation methods informed by the common law tradition. However, we submit that the same advice may lead negotiators astray under the civil law, which provides that a party may be held liable for breaking off a negotiation without just cause.

To resolve this issue, we propose that international negotiators focus on BATNA as just one component of the broader concept of Reserve Value, which must also take into account potential pre-contractual liability.

Negotiating With Someone Who Says "No" to Your Proposal

William Ury's well-respected book, Getting Past No receives a nice summary and application from Alex Craigie (At Counsel Table) here. 

  When negotiating with difficult people:
1. Put your emotions aside,
2. Listen to your counterpart's position well enough to state it back to your counterpart,
3. Reframe the dispute by recasting what your counterpart says in a form that directs attention back to the problem of satisfying both sides’ interests,
4. Make it easy for your counterpart to say yes if you can persuade your counterpart–overtly or covertly–that your proposal or goal is actually your counterpart's idea,
5. Make it hard for your counterpart to say now by showing your counterpart the alternative is if an agreement is not reached. As Alex Craigie says: "Here are three reality-testing questions Ury likes:

1. “What do you think will happen if we don’t agree?”
2. “What do you think I will do?”
3. “What will you do?”

Ury acknowledges that this won’t always work.  He reminds us of one of the most important concepts from Getting To Yes, formulating your own Best Alternative To A Negotiated Agreement (BATNA). Before you resort to actually implementing your BATNA, Ury suggests “you should let your opponent know what you intend to do. You want to give him a chance to reconsider his refusal to negotiate.” (Id. at 117.)"