If you teach students that it’s important to analyze their BATNAs, consider including material in your course on litigation interest and risk assessment, aka LIRA.
Virtually every negotiation, mediation, and ADR survey course teaches students that they should figure out their BATNA when negotiating or mediating.
That is sooooo much easier said than done, as I learned when co-authoring the LIRA book with Michaela Keet and Heather Heavin.
After I lectured people about the misuse of “BATNA,” Hiro Aragaki and Sanda Kaufman showed how I misunderstood and misused the term. You may too. They pointed out that a BATNA is a process, not the result of the process. This concept is a lot more complicated than most of us realize.
And people need to determine their bottom lines by adjusting the BATNA values to reflect the future tangible and intangible costs of going to trial. This bottom line (not merely the expected BATNA value) is the real “trip wire” for deciding whether to settle or continue litigating. Note that the parties may still settle before trial, so the alternative usually is continuing to litigate, not necessarily going to trial.
Deciding on bottom lines often is way more important than estimating the likely court outcome (aka BATNA value) because the intangible costs reflect parties’ substantive and procedural interests in their cases. These intangible costs often are overlooked or undervalued in teaching – and actual practice.
The techniques in the LIRA book are much more thorough and systematic for doing these assessments than in other texts. The techniques are flexible, so practitioners (and students) can adapt them to their philosophies and needs of particular parties.
So consider using the LIRA book as a required text in your course. Many faculty understandably prefer to use other texts, particularly if the books have worked well in the past. In those situations, you might include the LIRA book as a recommended text.
If you want to consider using it as a required or recommended text, you can email me and I will send you a review copy.
Resources for Your Courses
You might assign one or more blog posts, such this one, which provides a good description of LIRA procedures from a CPR meeting, including data about use of these procedures from a survey of attendees.
I have come to believe that the BATNA framework is confusing and that the LIRA framework is much more helpful, as described in BATNA’s Got to Go — and Here’s a Better Idea. If you use the LIRA framework, this post is helpful in “translating” BATNA into LIRA.
This post points out that BATNA values — expected court outcomes — actually are less important in negotiation than we often think — and teach. It is based on an article by a magistrate judge who has conducted thousands of settlement conferences.
This post discusses bottom lines, which are more important than BATNA values (which are not the only components of bottom lines).
BATNAs and the Emotional Pains from “Positional Negotiation” describes why this common approach to negotiation and mediation is so upsetting for many people — and things people can do to remedy these problems.
This is a summary of my presentation at Quinnipiac about how practitioners can help clients assess their litigation interests and risks.
Another post provides a list of questions that students might use in simulations and/or Stone Soup assignments to elicit information about intangible costs.
This post describes “planned early two-stage mediation” which can improve party decision-making.
This post describes “planned early multi-stage mediation,” which is increasingly used in the wake of the coronavirus crisis.
This post applies the LIRA framework to criminal cases.
This post applies the LIRA framework to transactional negotiations.
This includes links to Michaela Keet’s and Heather Heavin’s articles on litigation risk assessment.
Here are powerpoint files you can use or adapt to teach about how lawyers and mediators can help clients using a LIRA process.
