This post describes the role of BATNAs in the “positional negotiation” game, pains that it causes people in many roles, and some remedies to avoid and reduce these pains. In this “game,” each side seeks to maximize its outcome by starting with extreme positions and then making a series of counteroffers. Each side concocts stories justifying their positions but everyone knows that these stories are exaggerations at best and fibs at worst. If you gave truth serum to the lawyers, they would admit that they don’t really believe their own arguments.
But they do it because “everybody does it.” It’s expected. It’s just “puffing.” They would feel like suckers if they didn’t do it. They would see themselves as bad lawyers, failing to protect their clients. They fear losing financial rewards and professional opportunities if they don’t get good results for clients. But many don’t feel good about it. The process wears on some mediators who stage manage these dramas. Parties suffer the worst. Even when lawyers explain the game, clients often anchor their expectations on the negotiation positions. With each new concession, they feel a new loss – an unprincipled loss for no good reason. In the end, they swallow a bitter pill when they settle for a much worse outcome than they expected.
People can reduce or avoid pains of positional bargaining by using what I called “ordinary legal negotiation,” negotiating to change the game, and using wise assessment and communication techniques.
John M. Lande,
BATNAs and the Emotional Pains from “Positional Negotiation"
Available at: https://scholarship.law.missouri.edu/fac_blogs/20