![\"\"](\"https:\/\/journals.law.harvard.edu\/hnlr\/wp-content\/uploads\/sites\/91\/2010\/08\/book.jpg\" "\\"book\\"")
<\/a>Bargaining with the Devil, to Robert Mnookin, means negotiating with someone who has intentionally done harm and may well do so in the future: \u201can adversary whose behavior [one] may even see as evil.\u201d 1\u00a0 Should one negotiate with such a person or such a regime?\u00a0 Surprisingly, in this book, the Chair of Harvard\u2019s Program on Negotiation argues that there are circumstances in which the wise decision is to fight the harm-doer rather than negotiate.\u00a0 But that decision, if it is truly wise, can be made only after a rigorous analysis of the situation.\u00a0 In this book Mnookin sets out a framework to help in that analysis and illustrates it by reference to eight case histories.\u00a0 The question posed by the book\u2019s sub-title is stark: when to negotiate, when to fight?<\/p>\nFirst, I recommend you read this book for enjoyment.\u00a0 So skilfully does the author craft his case histories from the bedrock of research that the book is that rare thing among works of scholarship: a page-turner.\u00a0 Second, I recommend you read the book with a pen and paper by your side: there are profound questions here that will give you pause, prompt links to other literatures, and reinforce or challenge your habitual ways of thinking.<\/p>\n
Essentially, Mnookin\u2019s framework is a challenge to the negotiator to answer five questions that will make his or her bounded rationality less bounded. 2\u00a0 Drawing on psychology to show the traps that await our thinking, such as demonization, dehumanisation of the enemy and the blood-rushing call to battle, he makes a convincing case that dealing with a harm-doer puts us all in the domain of bounded rationality. 3\u00a0 There are other voices too: the call to peace, to an acceptance of shared fault and responsibility, to redemption.\u00a0 Those voices also need reflection, not reflex action.\u00a0 Does negotiating with harm-doers reward their behavior and make it likely to recur?\u00a0 Or will the transformative power of negotiation change the harm-doer\u2019s thinking and moral stance?\u00a0 These are questions that go to the heart of the human condition.\u00a0 They are the stuff of theatre and art and philosophy.\u00a0 Mnookin brings them home to us in the richness of his case histories.\u00a0 The questions in his framework will be familiar to those who have followed interest-based bargaining over the years \u2013 the focus on interests, alternatives, potential outcomes, costs, and prospects for implementation.\u00a0 Here, they are applied where the stakes are very high: war and peace, injustice and betrayal.\u00a0 In the political sphere, two of his protagonists are in jail as they make their decision to negotiate or not; two more are in the middle of World War II.\u00a0 The non-political cases include a family feud, a bitter labor dispute, a business conflict bedevilled by perceived broken promises and, finally, the egocentric quicksands of divorce.<\/p>\n
Like all case studies, the lessons learned depend on the prism through which they are understood.\u00a0 Mnookin nails his colors to the mast in the following key passage: \u201c\u2026you can\u2019t rely on hindsight to know whether you\u2019re making a wise decision.\u00a0 A wise decision can turn out badly; it happens all the time.\u00a0 And a stupid decision can have a good outcome; you can be lucky.\u00a0 So the test of wisdom cannot be whether you\u2019re proven right in the end.\u00a0 The test is, Did you think it through<\/em>?\u201d (emphasis in original). 4\u00a0 This makes sense since unless one adopts a position of \u2018always negotiate\u2019 then the decision to fight needs as sound a basis as possible.<\/p>\n As the case histories unfold, one comes to realize just how difficult it is to apply Mnookin\u2019s test in practice.\u00a0 The story of Anatoli Sharansky, refusing the slightest cooperation with his KGB captors over thirteen years, is remarkable for the way Mnookin teases out Sharansky\u2019s mental processes. 5\u00a0 Under enormous pressure to negotiate, Sharansky maintained a sense of the inviolability of his personhood and used all the psychological traps – either-or, win-lose, demonization – to support it.\u00a0 Thoughts, feelings, analysis, all had to be co-opted and rationalized in the service of intransigence.\u00a0 In human terms it is not hard to see why.\u00a0 A prisoner in a cell, facing death threats alternated with promises of eventual freedom, subject to ongoing attempts at brain-washing from a cell-mate almost certainly a KGB collaborator, may well feel the need to shut his mind to any data that threatens his resolve.\u00a0 In the end Mnookin comes to the conclusion that his decision was wise.\u00a0 I\u2019m not so sure.\u00a0 Heroic, steadfast, awesome in its courage, yes, but the price of it seemed to be a shutting down of the critical faculty, that very \u2018thinking through\u2019 that is Mnookin\u2019s test.\u00a0 I accept that some decisions have their origin in an intuition beyond logic, but, to my mind, wisdom requires that they be critically evaluated.\u00a0 In looking at such decisions I tend to think in terms of dissonance: if a protagonist gives a categorical \u201cno\u201d to negotiation, what, I wonder, would be the costs of a \u201cyes\u201d decision on their mental model of the situation.\u00a0 Will those of us who have not been in Sharansky\u2019s position ever know?<\/p>\n Reading the case histories, readers will bring their own perspectives and conceptual preferences to bear in deciding whether the protagonists passed Mnookin\u2019s test of \u2018thinking through\u2019.\u00a0 They will have a hard time with the case of Rudolph Kasztner, Mnookin\u2019s next case. 6\u00a0 The hapless Kasztner, it seems to me, was at the opposite extreme from Sharansky – he was not free not<\/em> to negotiate.\u00a0 Why?\u00a0 Because the structure of his predicament was such that he could try to save some Jewish lives in Nazi-occupied Hungary or try to save none.\u00a0 In discussing the case Mnookin refers to Styron\u2019s Sophie\u2019s Choice <\/em>7 where Sophie is given the choice of saving one of her children from death or sacrificing both.<\/p>\n It is clear from Mnookin\u2019s account that Kasztner had a long history as a negotiating fixer and presumably this was part of his habitual way of defining himself.\u00a0 The cost in dissonance terms of not negotiating would probably have been huge; together with the compulsive quality of the situation, I suggest it was impossible.\u00a0 It mattered little how implausibly bizarre Eichmann\u2019s demands became; negotiation was still the only game in town, an increasingly forlorn hope \u2013 but still a hope – of saving some lives.\u00a0 Mnookin\u2019s account of the twists and turns of the negotiation is masterful. He reminds us that it is unfair to judge based upon outcomes and knowledge gained after the event; Kasztner had to deal with uncertainty, personal threats and lying opponents.\u00a0 To be sure, questions could be asked about how much of Kasztner\u2019s knowledge of the situation he chose to share with others; but it is hard to believe that refusing to negotiate would have materially affected anyone\u2019s prospects for survival.\u00a0 Mnookin\u2019s conclusion that it was not Kasztner but the Nazi regime that bore responsibility for the slaughter seems fair to me.<\/p>\n It is almost with a sense of relief that one turns to Churchill and Mandela. 8\u00a0 In these cases, not only does Mnookin\u2019s framework come into its own, but those of us who believe in the possibility of reaching wise decisions in the midst of turmoil may find some consolation here.\u00a0 Again, there is a question of past decisions, personal identity and the dissonance of going against the momentum they create.\u00a0 Churchill had long seen Hitler as evil and untrustworthy, just as he had a personal identity as leader and defender of the nation.\u00a0 In addition, he disliked indecision, once saying that he never worried about action, only about inaction.\u00a0 Consequently, thinking through may have had a high emotional cost for him since it implied delaying a decision.\u00a0 One suspects Churchill understood very well Hamlet\u2019s observation that \u2018\u2026the native hue of resolution is sicklied o\u2019er with the pale cast of thought\u2019. 9\u00a0 By temperament, Churchill was drawn to the native hue end of the business.\u00a0 Nonetheless, when pushed, he appears from Mnookin\u2019s account to have passed the test \u2013 he thought through the decision whether to negotiate or fight and decided to fight.<\/p>\n It is no surprise that the case of Nelson Mandela is altogether extraordinary.\u00a0 My very first trip to the United States was to New Hampshire and I was struck by the words on the car licence plates: Live Free or Die.\u00a0 Those words could easily have been a guiding slogan for Mandela.\u00a0 Win-lose, either-or, no compromise.\u00a0 From such a starting point, the very idea of negotiation looks like a betrayal.\u00a0 And indeed, that was his starting point; but for him the momentum of past perceptions was not a predictor of his decision.\u00a0 Part of Mandela\u2019s genius was looking to the future, envisioning it and holding that vision no matter how awful, how dangerous, the present circumstances.\u00a0 Thinking through for him was natural \u2013 he once complained that he had more time to think about the future of South Africa when he was in jail than when he was President \u2013 but there was little chance of his getting stuck in a Hamlet-like paralysis by analysis.\u00a0 From his jail cell he moved decisively to initiate negotiations.\u00a0 The risks were enormous; from the suspicions of his own constituency, to the possibilities of civil war, a military coup or partition of the country.\u00a0 Only a person of outstanding willpower could have withstood the pressures; only a person of outstanding\u00a0 personality strength could have brought others with him. Mnookin makes no secret of his admiration, nor do I.<\/p>\n But the Mandela case illustrates another aspect of the \u2018negotiate\/fight\u2019 decision that I would have liked Mnookin to address more fully.\u00a0 On the outskirts of Johannesburg there is an apartheid museum.\u00a0 Even a casual visit there takes three hours in order to grasp the full range of legal instruments, paramilitary force and restriction of freedom\u00a0 brought together to deny the rights of the majority of the population.\u00a0 Even with the knowledge that the regime eventually ended, a visit there is a sobering experience.\u00a0 Like Mnookin, I believe in the transformative power of negotiation. There are examples in his IBM-Fujitsu case 10 where parties that started out with totally unreconstructed win-lose attitudes eventually came to a creative search for solutions, albeit in the shadow of arbitral power.\u00a0 But there exist parties for whom there is no arbitration or independent court, who dwell in conditions of structural violence; for them, fighting may be essential just to earn the right to a place at the table.\u00a0 Mandela was no pacifist: he had, when no change was possible, advocated violence against the apartheid regime.\u00a0 In the early pages of the book, 11 Mnookin investigates the wisdom of President Bush\u2019s decision to invade Afghanistan rather than negotiate with the Taliban.\u00a0 Guided by a series of questions, he reviews the evidence and the thinking through, concluding that fighting was the correct decision.\u00a0 Fine. But we must allow a similar rationality to the dispossessed, accepting that they too may conclude fighting is the correct decision.<\/p>\n Clearly, this line of reasoning is fraught with danger.\u00a0 Many governmental and nongovernmental groups may claim to have thought things through and now feel authorized to practise violence.\u00a0 In outlining his framework Mnookin discusses the possibility of using coercive force and points out that it requires legitimacy. 12\u00a0 But the full import of this point is blunted by his inclusion of lawsuits, strikes and lockouts in the list of coercive means.\u00a0 Such things are<\/em> coercive but are different from violence.\u00a0 Lawsuits, strikes and lockouts are situations of high drama, huge emotion and easily entrenched thoughts of win-lose.\u00a0 But they are not normally accompanied by serious violence to the person.\u00a0 The decision to pursue such violence Violent action needs a particularly strong legitimacy.\u00a0 The costs in terms of human misery and the torn fabric of society may be incalculable.\u00a0 So, while defending the right of the dispossessed to adopt violence I would suggest adding some proviso like \u2018where there are no political, legal, constitutional, diplomatic or other non-violent means of achieving a just outcome\u2019.\u00a0 Absent all of these, bargaining appears to be impossible, as it once did to Mandela; and those who believe in the transformative power of negotiation must direct their efforts to influencing the power-holders, that the conditions for non-violent engagement may be brought about.<\/p>\n Even adding a blanket proviso may not be enough.\u00a0 The presumption in favor of negotiation needs to be strengthened and Mandela\u2019s example does that.\u00a0 When, from prison, he made the first negotiating approach, not much had changed in the apartheid regime.\u00a0 International sanctions were hurting, yes, but practically no one would have conceived it possible that the white minority would soon agree to majority rule.\u00a0 Mandela\u2019s initiative flew in the face of any rational calculation of the odds.\u00a0 It seems to have originated from, and hoped to engage, what Lederach has called the moral imagination, \u201cthe capacity to imagine ourselves in a web of relationships that includes our enemies\u201d. 13\u00a0 There are other examples where those dispossessed of all else have not been dispossessed of this; and it too needs to have a place in the thinking through.\u00a0 Mnookin, I think, would not disagree.<\/p>\n The transformational power of negotiation is beautifully illustrated in Mnookin\u2019s non-political cases.,\u00a0 The IBM-Fujitsu case is fascinating for its first-hand account of the very unusual blending of arbitration and mediation. 14\u00a0 As it became clear during the bargaining process that resolving intellectual property disputes in technical terms was well-nigh impossible, the meaning of success switched to finding some other way of making progress.<\/p>\n Transformation doesn\u2019t always happen.\u00a0 The divorce case 15 is sad because the attempt to get the party to think through her interests fails.\u00a0 Perhaps there was a fantasy that a judge would deliver a blow to the former spouse that the protagonist herself could not.\u00a0 Perhaps such fantasies in divorce cases need further investigation.<\/p>\n The final case, of a family disputing their father\u2019s will, 16 has a happier outcome.\u00a0 It is notable for the risk Mnookin took in putting the focus on the relationship rather than the substantive issue of property.\u00a0 This is a perennial chicken-and-egg question: does improving the relationship facilitate substantive agreement or does engaging on substantive issues engender grudging respect?<\/p>\n I think that, sooner or later, the questions Mnookin asks will force us into a discussion of fundamental human rights.\u00a0 This is implied in his dealing with the limitations of the cost-benefit analysis approach 17 and in the book\u2019s final endnote 18 in which he ponders the possibility of a deal with the Taliban that would guarantee US security in return for the strict application of Islamic law, including the effect this would have on the rights of women.\u00a0 Such questions are among the greatest challenges of our time, and one hopes the author will return to them in a later work.<\/p>\n On reaching the end of the book, Mnookin says his goal was not to offer easy answers but to help us think more clearly about negotiating with those who do us harm.\u00a0 In this goal he has succeeded handsomely and given us a book to return to often, to pause with open page, and think.<\/p>\n * Mnookin, R.,. Bargaining with the Devil. New York. Simon & Schuster (2010). Bargaining with the Devil, to Robert Mnookin, means negotiating with someone who has intentionally done harm and may well do so in the future: \u201can adversary whose behavior [one] may even see as evil.\u201d 1 Should one negotiate with such a person or such a regime? Surprisingly, in this book, the Chair of Harvard\u2019s Program on Negotiation argues that there are circumstances in which the wise decision is to fight the harm-doer rather than negotiate. But that decision, if it is truly wise, can be made only after a rigorous analysis of the situation. In this book Mnookin sets out a framework to help in that analysis and illustrates it by reference to eight case histories. The question posed by the book\u2019s sub-title is stark: when to negotiate, when to fight? <\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[38,42],"tags":[39],"class_list":["post-832","post","type-post","status-publish","format-standard","hentry","category-hnlr-online-article","category-negotiation","tag-hnlr-online-articles"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZSkE-dq","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts\/832","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/comments?post=832"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/posts\/832\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/media?parent=832"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/categories?post=832"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hnlr\/wp-json\/wp\/v2\/tags?post=832"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n**Adjunct Professor in Management, J.E.Cairnes School of Business and Economics, National University of Ireland, Galway. He can be contacted at leo.smyth@nuigalway.ie
\n1 Bargaining with the Devil<\/em> at 1
\n2 Id<\/em>. at 27-32
\n3 Id<\/em>. at 18-21
\n4 Id<\/em>. at 104
\n5 Id<\/em>. at 36-49
\n6 Id<\/em>. at Chapter Four
\n7 Styron, W., Sophie\u2019s Choice<\/em>. New York. Vintage (1979).
\n8 Bargaining with the Devil<\/em> Chapters Five and Six
\n9 Shakespeare, Hamlet<\/em> Act 3, Scene 1
\n10 Bargaining with the Devil<\/em> Chapter Seven
\n11 Id<\/em>. at 2-3 and at 6-8
\n12 Id<\/em>. at 29
\n13 Lederach, J.P., The Moral Imagination<\/em>. Oxford. Oxford University Press (2005).
\n14 Bargaining with the Devil<\/em> Chapter Seven
\n15 Id<\/em>. at Chapter Nine
\n16 Id<\/em>. at Chapter Ten
\n17 Id<\/em>. at 263
\n18 Id<\/em>. at 306<\/p>\n","protected":false},"excerpt":{"rendered":"