The negotiator

The most important decision in resolving a conflict is when to negotiate and when to fight. It says so right in the subtitle of Robert H. Mnookin’s book, “Bargaining with the Devil: When to Negotiate, When to Fight.” Now 82, the author still serves as director of the Harvard Negotiation Research Project and emeritus chair of the Program on Negotiation, a fitting denouement for a lifetime devoted to resolving grand-scale disputes and sharing his wisdom in books and other writings. From mediating an agreement between technology giants IBM and Fujitsu to playing a part in Israel-Palestine discussions, he’s learned a few things.

Studying economics as a Harvard undergrad, the Kansas City, Missouri, native had no inkling of the life he would lead. But an econ class taught by Thomas Schelling, an early game theorist who was interested in U.S.-Soviet Union interaction over nuclear arms, ignited a spark of interest that would over time burst into flame. “That introduced me to what in economics is known as strategic interaction — where two parties may have somewhat adversarial interests but may also have some common interests and have to decide how to deal with each other.”

Still, he came to dispute resolution through a side door. He jokes that the year he and his wife spent in the Netherlands on a Fulbright scholarship studying econometrics was enough to send him back to Harvard for law school. They’re now 60 years into a marriage that began when he was a college senior. Their journey has spanned two daughters, two law clerkships — a year on the D.C. Circuit Court and another clerking for U.S. Supreme Court Justice John Harlan — private law practice and stints teaching law at the University of California, Berkeley, and Stanford. He’s been on the Harvard Law School faculty since 1993.

Unlike Mnookin, most people will never help craft agreements between warring nations, giant corporations or a renowned symphony and its board. But the principles, he says, apply to disagreements in general. He sometimes starts negotiation workshops by asking students if they’ve ever negotiated. Just a third raise their hands. Mnookin believes the rest get it wrong.

Deseret Magazine: Why are they wrong?

Robert Mnookin: I want them all to raise their hands. We’ve all been negotiating all of our lives. Children negotiate with parents, even with other students about various issues. I see negotiation everywhere because people are always having to make deals with other people where their interests may or may not be aligned.

DM: What diverted you into this field?

RM: I co-wrote a much-cited article called “Bargaining in the Shadow of the Law: The Case of Divorce.” It showed that the overwhelming majority of divorce cases are resolved through negotiations, between the lawyers or the divorcing spouses. This doesn’t mean there isn’t conflict, but courts decide very few. The law isn’t irrelevant. Often in that bargaining, one or both sides are thinking about what if negotiations fail, what’s going to happen in court? So that party’s behavior is influenced to some degree by their predictions of what might happen if negotiations fail.

DM: What have you learned that we might use in our ordinary lives?

RM: Effective negotiation requires management of tensions that cannot be made to go away. There is a tension between creating value on one hand and distributing value on the other. Through negotiation, it is possible for people to expand the pie to create value. Assume you and I have different skills, but they’re complementary. If you were an expert at marketing, but I was a good mediator, we could have a partnership where you did all the marketing for my mediation practice. I would have a much larger and more profitable business. But no matter how big the pie is, there’s still a question of distribution. How are we going to share? One challenge in negotiation is when people focus too exclusively on the distributive issue, worried about simply maximizing the size of their share. They see it in zero-sum terms: What you get, I lose. The dilemma is you miss opportunities to collaborate and expand the pie.

DM: Talk me through that in the case of divorce.

RM: Parties can have different preferences. Even with respect to money issues, there are often ways of carving things up that make more than zero sum. For example, if one spouse after the divorce provides resources for the other to get retrained, the other may over time substantially increase their earnings and require less payments from the richer spouse. There may be an asset that has sentimental value for one spouse, but not the other. So that spouse may be willing to give up some other assets valued more by the other party. Presumably, both care about the long-term happiness of the children. And they can, I hope, be educated to understand that by keeping the children out of the conflict and being able to collaborate with child rearing, the child would be better off. Through negotiation, deals can be made that are much better than if the spouses simply fought it out and wasted resources in a judicial proceeding.

DM: How do you decide when to negotiate and when to fight?

RM: That’s a challenge. In the hardest kind of conflict — with an adversary who you do not trust, who has harmed you in the past, who you are persuaded would like to harm you in the future — how do you decide? Sometimes there’s such hostility that families or businesses just want to fight. They don’t want to negotiate. In international affairs, this often happens. The United States claims we won’t negotiate with terrorists. There are periods of time when we haven’t negotiated with Iran. There was a famous quote from Vice President (Dick) Cheney, saying part of my job is to make sure we never negotiate with evil actors. In my book, “Bargaining with the Devil,” I tried to offer a framework for thinking through both the advantages and disadvantages.

DM: Can you share some examples?

RM: My two greatest political heroes in the 20th century were Nelson Mandela, who after years in prison chose to negotiate while he was in custody, although it was contrary to the stated policy of the African National Congress. Winston Churchill, on the other hand, chose to fight. In 1940, France had fallen, there was a need to evacuate troops from Dunkirk and the United States was not yet involved in the war. Some thought there was an opportunity for Benito Mussolini to mediate between Great Britain and Nazi Germany to avoid being further involved. In Britain’s darkest hour, although there were members of his own cabinet who wanted to pursue it, Churchill refused to negotiate. In the benefit of hindsight, it was a good thing, too. What I knew from those examples is there was not going to be a single, simple answer.

DM: So what’s your last word on it?

RM: If you make a deal with the devil, inevitably, the devil is going to get some benefits. Otherwise they wouldn’t make a deal. Presumably you’re going to get benefits as well. There is not only an emotional dimension but a moral dimension. Is it right to do anything that allows Hamas to have any semblance of continuing power? These are hard questions, and hard judgments to make because they always involve uncertainty. There are times when you will appropriately conclude that you shouldn’t negotiate. But go through a careful analysis of the costs and benefits of negotiating, what the risks and opportunities are. Try to be objective. If you know you have strong implicit biases, you may want to consult with others who are less involved. That’s very important. Should you bargain with the devil? Not always, but more often than you feel like it, because all of your inclinations are going to be to refuse.

I see negotiation everywhere because people are always having to make deals with other people where their interests may or may not be aligned.

If you make a deal with the devil, inevitably, the devil is going to get some benefits. Otherwise they wouldn’t make a deal.

This story appears in the May 2024 issue of Deseret Magazine. Learn more about how to subscribe.