It’s your BATNA too

As an attorney who spends his days drafting and negotiating contracts (I am not a litigator), one thing I have to keep in mind at all times are my and my counterparty’s BATNAs (Best Alternative To a Negotiated Agreement). I and my counterpart to a negotiation (usually we’re two lawyers) are trying to get the best deal we can for our client, but we are also trying to make sure the other side doesn’t walk away from the table, as the prospect of a deal has become worse for them than no deal at all.

In a sense, I own both BATNAs. I have to, as a matter of professionalism. If my client would prefer a deal, but my counterpart ends up preferring their BATNA, my client loses the deal and gets his own BATNA, even if that makes him worse off. I have to consider that, or I’d be a bad negotiator. I also counsel my clients on this, as a reminder to them to not be too greedy, and instead by creative about finding deals that work for everyone.

That’s why I have zero patience with complaints from Verizon and Comcast about the new Net Neutrality rules promulgated by the FCC. The internet carriers the United States have today had, by global regulatory standards, unprecedented free reign to invest in their networks, manage them for growth, and innovate on services and delivery. A few of them, such as Google Fiber and Chatanooga, TN’s municipal ISP, used it to deliver real value to consumers – but most did not. The majority of American ISP’s wasted that opportunity thoroughly, by taking the maximum amount of profit for the minimum amount of service, while stifling competition at every opportunity. They worked tirelessly to see to it that the people of America preferred their BATNA to a deal. Now the government, as the agent of the people’s will, have chosen that BATNA, and Verizon, Comcast, and the like own that BATNA just as completely as FCC Commissioner Tom Wheeler.

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