BATNA May Be Less Important Than You Think – and Teach
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So, in real-life negotiations, BATNA values are much less important than we probably think – and teach our students.
That’s the takeaway from a new article in the Harvard Negotiation Law Review, Sizing Up Settlement: How Much Do the Merits of a Dispute Really Matter?, by US Magistrate Judge Tim A. Baker based on his experience conducting thousands of settlement conferences. Here’s the abstract:
Legal disputes routinely settle. But to what extent do the merits of the parties’ legal positions determine the terms of settlement? In theory, the party with the more favorable legal position will achieve the more favorable settlement. In actuality, the merits of the legal dispute often play a largely diminished role in achieving settlement. Economic factors, such as whether a party can afford costly litigation or whether a defendant can afford to pay a settlement or judgment, play a crucial role in settlement outcomes. Numerous other factors unrelated to the merits of the litigation similarly drive settlement outcomes.
Read original articleThis Article explores the economic and many other factors unrelated to the merits of a dispute that play a significant role in determining whether and on what terms a dispute will be resolved. Lawyers who are cognizant of these factors and fully capitalize on them during settlement will achieve better litigation outcomes. Mediators who do the same can more effectively move a hard-fought dispute toward settlement.
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