I had no idea what kind of acronym this was, since it seems every aspect of my life has its own shorthand. It turns out this is a management and negotiating term: the Best Alternative To A Negotiated Agreement. It also turns out everyone needs to have one.
Let's back up a bit. You're querying a manuscript and an Agent, Annie Awesome, calls to offer representation. You hit it off on the phone, and she sends you her agency contract. But in that contract, you find something you don't feel comfortable with. What do you do?
It's not time to panic. It's not a question of either signing over your soul or losing your publishing dreams. Instead, it's a question of negotiating.
Business negotiation has taken on something of a pejorative meaning lately, the idea that each party seeks to protect its interests while feasting on the hearts of their business associates. That's not going to be true in an agent-client relationship, nor in an editor-author relationship.
Instead let's reframe the idea of negotiation: you and Agent Annie Awesome both want the same things, and in the long run, neither of you benefits if either one of you is contractually abused. What you're working out are the details.
It's true that every so often you'll hear a horror story about an agent who dropped her brand-new client because the client asked a few questions. I think the real truth in those cases is that the agent is a lousy agent, and I say that because agenting is all about negotiating. Questions are part of negotiation.
If an agent cannot negotiate, she is not a good agent. If an agent cannot negotiate with you when she wants you to become her client, then how is she going to negotiate with potential editors?
So when you find a problem with the contract offered to you by an agent or an editor, steel yourself to negotiate. It's fine. Agents are good at negotiating. But first, figure out your BATNA.
The "best alternative to a negotiated agreement" is what you're going to do if you and the other party do not enter into an agreement at all.
It's your Plan B, to some extent, although it's more sophisticated than that. In the case of Agent Annie Awesome, your BATNA might be to continue querying other agents, since now you know you can attract an agent's attention. Your BATNA may be to self-publish your manuscript or to market it to editors yourself. Figure out what that is, its benefits and drawbacks.
And here's the key: when you negotiate, you should never settle for anything less than your BATNA. There's no reason to. If you can achieve a specific good without the other party, then you don't need to pair with them in order to achieve less.
Obviously your BATNA is stronger if you also have an offer from Agent Spencer Spectacular, but the object isn't to pit one agency against the other. The object is to reach an agreement both you and your future agent can live with.
I know sometimes writers are a little socially awkard (and I'm their poster child), but reassure yourself: this is not adversarial.
Explain the aspect of the contract you take issue with. Explain your reservations. Ask for the change you want to the contract, keeping in mind that the agent or editor is going to have specific needs as well. Doing this will help you solve your problem with the contract in such a way that it doesn't create a problem for the other party.
Negotiating should be about meeting both parties' needs in such a way that both are satisfied with the outcome. Many agency and publisher contracts, for example, have a paragraph in which the author indemnifies the agency or publisher against actions committed by the author. That's fine. They seldom contain a reverse paragraph, in which the agency or publisher indemnifies the author. I've asked in each of my contracts for mutual indemnification, and every time, the other party has agreed this is perfectly fair.
Keep in mind that if there's one paragraph in your contract where you read and hope it will never come to bear -- it's going to.
The key here is not to settle for less than your BATNA. If your BATNA is to continue querying, then don't reluctantly lock yourself into a five-year contract with an agency. If your BATNA is to self-publish, don't sign with a small press that withholds royalties until their operating expenses have been recouped. Know your BATNA, and keep that in mind before you sign.
(For more about BATNA and negotiation, check out Fisher and Ury's book Getting to YES. As an added bonus, my Patient Husband tells me that from the spine side, it looks like Getting TOYS.)