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Say you need to purchase materials for your business from a supplier; it's an emergency - you needed these supplies yesterday, and you cannot wait for tomorrow. When you go to the supplier, he sees that you are in trouble. And seeing this, he knows he can charge you a premium for the materials. Now, what if, instead, you went to three or four suppliers who could meet your needs and budget? When the first supplier knows this, suddenly he is a lot more reasonable in his prices.


BATNA, or the Best Alternative to Negotiated Agreement, is a concept developed by Roger Fisher and William Ury of the Harvard Program on Negotiation. It is about having an alternative that can be turned to when negotiations grind to a halt . More importantly, it is a way to improve your bargaining position and a way to measure just how good a deal really is. If it is not better than the BATNA, then don't agree.

Mediation does not always resolve a situation to the satisfaction of both sides; in these cases, the mediator will ask the parties to think about what will happen if mediation fails and what they believe is the best alternative. In the example above, the BATNA is the lower prices of the competitors; this is an alternative plan that will benefit the buyer, and it can help the supplier realize he needs to offer more reasonable terms.

The key is getting both sides to see that alternatives exist if they open their eyes to them.

They often realize that failing is not what they want or need, especially if it means they will have to take the time and money to go to court. To go back to our buyer/supplier analogy, the buyer may realize he doesn't want to risk trying a new supplier; the seller may not want to lose this customer. They agree to new terms.

Getting to a BATNA usually involves several steps:
  • If mediation appears to be fruitless, it is helpful to provide a fresh perspective on the problem. Both parties, as well as the mediator, have to maintain a positive attitude; optimism can solve problems if both parties continue with the process.
  • Mediators support the brainstorming of all the possible alternatives. As with any brainstorming, the goal is to write down anything that comes to your head but to separate this creative process from the process of evaluating the alternatives. Separate the inventing from the deciding. Ideas, and lots of them, should come from this exercise.
  • Mediators then help the participants evaluate the ideas generated and determine if any of them are practical alternatives.
  • Alternatives can act as a springboard for other ideas, and many times, the parties can see that compromise may truly be in their best interest. Sometimes compromise may not even be necessary and agreement is still possible. These are the magic moments in mediation - the win-win solutions that all mediators hope for.

At the outset of the mediation process, both parties should be determined to reach a satisfactory agreement. BATNA should not come into play unless negotiations are sputtering or the parties are not clear what is at stake. While this method may not always be successful, it does keep the channels of communication open a while longer so a solution can be found and encourages clear and forward looking thinking.

Contributed by John Curtis, Attorney and Conflict Coach


Larry Hart

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