In every mediation I participate in, there's a number that matters more than the demand, the offer, or anything written in a pleading and it's rarely spoken aloud. Negotiation theory calls it your “Best Alternative to a Negotiated Agreement,” or BATNA, for short. In plain terms, it's the honest answer to one question: if you walk away from this table today without a deal, what happens to you?
For a plaintiff in a healthcare liability case, that often means years of continued litigation, the expense and stress of depositions and expert discovery, the genuine unpredictability of a jury, and the real possibility of recovering nothing. For a defendant and their carrier, it can mean mounting defense costs, exposure to a verdict well above policy limits, and the reputational fallout of a public trial.
After more than 35 years on both sides of these cases, and now as a neutral, I can tell you that most people walk into a negotiation with a BATNA they've badly misjudged. Plaintiffs sometimes assume a jury will see the case exactly as they do. Defendants sometimes assume their expert will carry the day. Both perspectives are frequently incorrect, and the discrepancy between an individual's perception of their alternatives and the reality of those alternatives is where most impasses originate.
A skilled mediator's real job isn't persuasion. It's helping each side pressure-test that number honestly, without fear or false confidence, so the offer in front of them can be judged against reality instead of against hope. Once both sides see their actual alternative clearly, the conversation almost always gets easier because, often for the first time, everyone is finally negotiating against the same set of facts.
To my attorney followers, I pose the question - in your next negotiation, have you honestly pressure-tested your BATNA - or just assumed it?
Contact me today to mediate your healthcare liability case at 407.493.0899 or book me directly on my Appointments page.
