February 07, 2010
In the most recent U.S. presidential election, the candidates debated the wisdom of negotiating with enemies. But such a debate is not confined to political leaders. Whether it’s a dispute between countries, businesses or family members, the parties involved face a crucial decision. And Robert Mnookin ’68 offers a guide to making the right one in his new book, “Bargaining With the Devil: When to Negotiate, When to Fight” (Simon & Schuster).
A professor and chair of the Program on Negotiation at Harvard Law School, Mnookin presents case studies from history as well as private disputes in which he has served as mediator and arbitrator, outlining how and why people decide to negotiate and the factors that influence the bargaining process. In each case, he evaluates the wisdom of the decision and addresses the ethical and moral issues that arise.
Contrary to many others in the dispute resolution field, Mnookin advises against negotiation in certain circumstances. Indeed, the idea for the book developed out of a debate shortly after the Sept. 11 attacks, when he argued that the United States should not negotiate with the Taliban, contending that the chances for a potential agreement were minimal and that negotiating would undermine U.S. credibility.
Mnookin praises the stances of leaders such as Winston Churchill and Natan Sharansky, who refused to bargain with the “devil” (a term he uses to describe someone perceived as untrustworthy, harmful or even evil). At the same time, he says that people who demonize an adversary often resist negotiating even when it would benefit them. While he endorses a presumption in favor of negotiation, he recognizes that people often are driven to fight by personal morality or outrage.
“There is often a tension that’s inescapable between a resolution that can serve your interests best in the long run and the unmitigated pursuit of justice,” Mnookin says.
He counsels readers to recognize “negative traps” that can distort thinking, such as tribalism, dehumanization and moralism. In order to make a wise decision, those involved in a conflict should undertake careful analysis, preferably in consultation with an outside party, that takes into account their interests and the alternatives to—and costs of—negotiation, he writes.
Mnookin identifies Nelson Mandela—who in the best interests of his country decided to bargain with a government that imprisoned him—as the greatest negotiator of the 20th century. His example shows that it is foolish to reject outright the possibility of negotiating with an evil adversary, according to the author. Though Mandela hated the apartheid regime in South Africa, he “ultimately achieved through negotiation an outcome that could never have been accomplished solely through violence or resistance,” writes Mnookin.
Such a lesson can serve people even when the stakes are much lower, he contends. In business and family disputes, he says, “People have the same tendency to feel that they’re not being true to themselves if they negotiate.” As a mediator, he has steered people in such cases toward negotiation—although the participants were beset by anger and mistrust. In one instance, two companies battling over the use of operating system software agreed to an unusual arrangement establishing a secured facility where relevant information was shared. It is an example, writes Mnookin, whereby “a third party, acting as mediator, can facilitate voluntary settlements when it is impossible for bitter enemies even to sit down at the negotiation table together.”
He also shows the downside of refusing to negotiate. In one bitter divorce case, the wife was offended by her husband’s settlement offer and never responded to it, necessitating a lengthy court fight. The wife’s refusal to negotiate, in Mnookin’s view, prolonged the conflict, cost substantial attorneys’ fees and prevented her from reaching a deal that would have better served her interests—and her children’s. Mnookin acknowledges that it can be painful to bargain with the devil, but it can hurt even more not to.
—Lewis I. Rice
In 2000, Professor Robert Mnookin co-wrote “Beyond Winning: Negotiating to Create Value in Deals and Disputes,” with Scott Peppet ’96 and Andrew Tulumello ’96. That book and his work at the Program on Negotiation were profiled in the article “Bargain Hunting”, which was featured in the Fall 2000 Harvard Law Bulletin.