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<xTITLE>How to Calculate and Use BATNAs and Bottom Lines</xTITLE>

How to Calculate and Use BATNAs and Bottom Lines

by John Lande
January 2020

Just Court ADR by Susan M. Yates, Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.

John Lande

Everyone talks about knowing one’s BATNA in negotiation and mediation.  But that’s a lot easier said than done.

In litigated cases, the value of the BATNA usually is the expected trial outcome, but that is notoriously hard to predict for many reasons.  The outcome of numerous legal and factual issues may depend on the evidence, witnesses’ demeanor, lawyers’ skills, and predispositions of judges and juries, among other things.  Lawyers and litigants often are over-confident because of numerous cognitive and motivational biases.  These problems are aggravated by awkwardness in lawyer-client relationships and lawyers’ reticence to communicate clearly.

To make good decisions in legal cases, lawyers and litigants must supplement predictions of court (or arbitration) outcomes with estimates of both tangible costs of litigation and trial (legal fees and expenses) and intangible costs (such as personal stress, damage to relationships and reputations, losses of opportunities, and organizational dysfunction related to litigation).  People often ignore or undervalue the intangible costs.  To set an appropriate bottom line in negotiation and mediation, parties need a good understanding of their tangible and intangible costs of going to trial.

The new ABA book, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions, is designed to help lawyers, mediators, settlement conference judges, and litigants make better decisions by systematically considering all these factors.

The book describes how practitioners can:

  • Recognize and avoid common decision-making errors in litigation
  • Anticipate likely court outcomes more accurately
  • Communicate with clients about what’s most important to them in their case
  • Help clients make better decisions
  • Negotiate and mediate more effectively
  • Learn about technological tools to help make decisions in litigation

Written by Michaela Keet and Heather Heavin from the University of Saskatchewan and yours truly, this book is designed to help practitioners in their work, but law school faculty and students should be interested as well.  In particular, in your simulations, you may want to use the appendixes for the lawyer’s interview guide and neutrals’ questions about litigation interests and risks.

Click here to read the table of contents and introduction.  If you want to consider using this book as a required or recommended text for a course, please let me know and I will be happy to send you a review copy.

Michaela, Heather, and I think that the book is pretty darn good.  That’s way off the scale in Canadian.

But don’t just take our word for it.  Take theirs: Peter Benner, Sarah Cole, Noam Ebner, Brian Farkas, Lainey Feingold, Justice John Gill, Steve Goldberg, Dwight Golann, Chris Honeyman, Cheryl Jamison, Léa Lapointe, Michael Leathes, Lela Love, Paul Manicotti, Bernie Mayer, Larry Mills, Ben Picker, Spencer Punnett, Len Riskin, Colin Rule, Andrea Schneider, Donna Shestowsky, Rick Weiler, Hon. James Williams, and Doug Yarn.

If you want to get a copy of the book, click here.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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