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Book Review

Bargaining With The Devil: When to Negotiate, When to Fight
by Robert Mnookin
NYSBA New York Dispute Resolution Lawyer | Spring 2011 | Vol. 4 | No. 173

Treatingreating conflicts as disparate as World War II and divorce, this fascinating book marries history with negotiation theory and practice. Written in a clear and lively style, it entertains as well as educates. Most important, it delivers on the promise of its catchy title. By the end the reader will have received invaluable aid on how to decide the perplexing question of whether to bargain with someone regarded as an enemy: an adversary “you don’t trust...whose behavior you may even see as evil.”

The author, Professor Robert Mnookin, is a leading scholar and practitioner of alternative dispute resolution, who holds a chair at Harvard Law School. He frames the discussion with introductory chapters setting forth the challenges presented by his subject and a brief conclusion suggesting an approach to the problem comprised of a few general guidelines. (The author is much too sensible and modest to attempt to give black-letter “answers.”) In between, he tells eight stories, several with an international setting, in great detail; he uses these both to illustrate and to develop his points.

Three involve global events with hundreds of thousands — even millions — of lives at stake. The protagonists, a Hungarian Jew named Rudolf Kasztner, Winston Churchill, and Nelson Mandela had to decide whether to bargain with true devils: Eichmann, Hitler and the South African apartheid regime. A fourth concerns Anatoli Sharansky, a Russian “refusenik” who spurned talks with the KGB at the price of remaining imprisoned in the Gulag. Although only his personal well-being was directly at risk, he too faced an evil system and a choice implicating much broader issues.

The other narratives deal with business and family issues drawn mainly from Mnookin’s own cases: an intellectual property dispute involving two software giants, IBM and Fujitsu; severe and recurring controversies within the San Francisco Symphony; a rather mundane divorce litigation (the only chapter that could usefully have been omitted); and sibling warfare over an inherited beach property (which serves as the springboard for an incredibly deft mediation by the author).  The “devils” in these private stories, while hardly in the Nazi league, nonetheless posed the same quandary for their adversaries as the notorious public devils. Should one reject negotiating with evil on principle or, instead, be practical and concede that “you may have to give the Devil something you feel he doesn’t deserve”? Look backward, dwelling on past wrongs, or focus on the future and the need for resolution? The punitive impulse, Mnookin notes with typical insight, “can be as powerful in business and family disputes as in international conflicts — perhaps even more so.” Hence, the seemingly odd choice to draw on such dissimilar sources, macro and micro, for his conclusions actually makes good sense as well as providing more interesting reading than the average study of negotiation.

The author’s substantive response to the question whether to bargain with the Devil is: “Not always, but more often than you feel like it.” In disavowing the position that a disputant should always attempt to settle, Mnookin departs from conventional wisdom in the dispute resolution field.  However, in his concern with process — how to decide in particular cases whether to do so — he embodies the common professional approach. Chiefly, he suggests three decisional guidelines. First, in order to avoid knee-jerk, intuitive reactions, conduct a systematic cost-benefit analysis. Rationally examine the parties’ interests and alternatives to bargaining to see if any potential agreement might serve them better than their best options away from the table (BATNAs). Also consider each side’s costs of negotiation and issues of implementation and enforcement. Second, during this evaluation get advice from others with less emotional involvement. Third, employ a presumption in favor of negotiation.

Is Mnookin right to place a heavy thumb on the scale in favor of sitting down with the enemy? He acknowledges that in the toughest situations, which most keenly pit principle against pragmatic concerns, he tilts very far toward pragmatism. Indeed, a fourth, atypically categorical “guideline” declares it “improper” for a person acting as a representative to let his personal moral intuitions override a practical assessment counseling bargaining — individuals acting in their own behalf may choose to assume the relevant risks. Once again, this stance is characteristic of neutrals. Some may say that he gives moral considerations too short shrift. Yet the author expressly states: “When fully explored by the analytic part of the brain...moral values should, and in some cases must, be factored into decision making.”

Further, he persuasively justifies his approach as a counterweight to the powerful forces spurring refusal to bargain with perceived devils. These are the so-called negative traps, which include demonization, zero-sum thinking, tribalism and moralism. While some may view these stances as simply realistic in confrontations with monsters like Hitler, they plainly detract from rational analysis. (Moreover, even in devilish systems like South Africa under apartheid, the individuals with whom one deals, like Prime Ministers Piether Botha and F.W. de Klerk, are often recognizably human, if deeply flawed.) In addition, in assessing the courses pursued by his dramatis personae, he sometimes views decisions not to negotiate as wise or, at least, defensible — as, for example, Sharansky’s and Churchill’s. By contrast, Mnookin believes that Kasztner, who never gave up trying to make a deal with Eichmann despite his proven untrustworthiness, would have done better at some point to adopt a “mixed” strategy. This would have entailed Kasztner’s trying to warn his constituents to hide or flee when his plan to trade large numbers of Jewish lives for money or property was plainly not working.

Mnookin’s discussions of historical figures necessarily rest on second-hand evidence. Much of it seems reasonably reliable; Mandela’s Autobiography and the later released secret minutes of Churchill’s War Cabinet spring to mind. Yet the author must still make speculative leaps that analysis of his own cases does not require. Further, in the symphony and software sagas, the parties waived confidentiality, thus allowing Mnookin to relate the relevant events in all their authentic specificity. Although in one instance, the IBM-Fujitsu clash, his closeness to the story proves something of a drawback, enticing him to drown the reader in arguably excessive detail, the account yields compensating benefits. As with the other private disputes, it offers more directly useful insights to dispute resolution professionals than the studies of conflicts involving matters of state and public affairs. These go beyond dealing with the central question of the book (one to be answered in particular instances by parties, not neutrals) of whether to negotiate in the first place.

Hired to arbitrate a very complex international lawsuit capping years of corporate warfare, Mnookin and a fellow arbitrator, a non-attorney computer expert, realized that new disputes were arising faster than they could be addressed. (In 20-20 hindsight, the emergence of this difficulty was predictable since the two companies remained partners in an ongoing joint venture.) “But designing a new process was not part of an arbitrator’s job description.” Nonetheless, managing to gain the litigants’ consent — in the case of the highly suspicious Fujitsu, no easy matter — Mnookin and his cohort fashioned a “new hybrid process”: they undertook to “mediate where possible and rule where necessary.” Alternating roles as mediators, private judges, and administrators (the latter function required by the welter of technical issues), they succeeded in creating a global solution to the companies’ problems. It put an end to past squabbles while permitting the parties to continue working together in the future.

What can practitioners draw from this tale? For one thing, it serves as a helpful reminder that there is no one-size-fits-all approach to the art of dispute resolution. To paraphrase Mnookin, thinking out of the box is the job description of the neutral—whether the conflicts be large or small. In addition, the story illustrates how cultural differences can cause or intensify disagreements as well as hamper negotiations. The marked differences between the American and Japanese “styles” included the Japanese emphasis on the relationship rather than the written contract and their inability to move ahead on new issues in face-to-face meetings since they do not give those at the table authority to depart from positions reached earlier by consensus. The case also vividly shows that corporations (through their agents) can act as emotionally as individuals: Fujitsu’s president, feeling disrespected, betrayed and humiliated by its adversary’s threats, responded with a declaration of “war.”

The author closes on a note of diffidence, conceding that this work will not constitute the last word on the vexing question of whether to negotiate with the Devil. He hopes, however, to have helped the reader “think more clearly about how to navigate this terrain with integrity—and wisdom.” He has more than achieved this goal. A wise man, Mnookin has produced an accessible, yet profound — and very wise — book.