Leo F. Smyth**
Bargaining with the Devil, to Robert Mnookin, means negotiating with someone who has intentionally done harm and may well do so in the future: “an adversary whose behavior [one] may even see as evil.” 1 Should one negotiate with such a person or such a regime? Surprisingly, in this book, the Chair of Harvard’s 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’s sub-title is stark: when to negotiate, when to fight?
First, I recommend you read this book for enjoyment. 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. 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.
Essentially, Mnookin’s framework is a challenge to the negotiator to answer five questions that will make his or her bounded rationality less bounded. 2 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 There are other voices too: the call to peace, to an acceptance of shared fault and responsibility, to redemption. Those voices also need reflection, not reflex action. Does negotiating with harm-doers reward their behavior and make it likely to recur? Or will the transformative power of negotiation change the harm-doer’s thinking and moral stance? These are questions that go to the heart of the human condition. They are the stuff of theatre and art and philosophy. Mnookin brings them home to us in the richness of his case histories. The questions in his framework will be familiar to those who have followed interest-based bargaining over the years – the focus on interests, alternatives, potential outcomes, costs, and prospects for implementation. Here, they are applied where the stakes are very high: war and peace, injustice and betrayal. 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. 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.
Like all case studies, the lessons learned depend on the prism through which they are understood. Mnookin nails his colors to the mast in the following key passage: “…you can’t rely on hindsight to know whether you’re making a wise decision. A wise decision can turn out badly; it happens all the time. And a stupid decision can have a good outcome; you can be lucky. So the test of wisdom cannot be whether you’re proven right in the end. The test is, Did you think it through?” (emphasis in original). 4 This makes sense since unless one adopts a position of ‘always negotiate’ then the decision to fight needs as sound a basis as possible.
As the case histories unfold, one comes to realize just how difficult it is to apply Mnookin’s test in practice. 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’s mental processes. 5 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. Thoughts, feelings, analysis, all had to be co-opted and rationalized in the service of intransigence. In human terms it is not hard to see why. 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. In the end Mnookin comes to the conclusion that his decision was wise. I’m not so sure. Heroic, steadfast, awesome in its courage, yes, but the price of it seemed to be a shutting down of the critical faculty, that very ‘thinking through’ that is Mnookin’s test. I accept that some decisions have their origin in an intuition beyond logic, but, to my mind, wisdom requires that they be critically evaluated. In looking at such decisions I tend to think in terms of dissonance: if a protagonist gives a categorical “no” to negotiation, what, I wonder, would be the costs of a “yes” decision on their mental model of the situation. Will those of us who have not been in Sharansky’s position ever know?
Reading the case histories, readers will bring their own perspectives and conceptual preferences to bear in deciding whether the protagonists passed Mnookin’s test of ‘thinking through’. They will have a hard time with the case of Rudolph Kasztner, Mnookin’s next case. 6 The hapless Kasztner, it seems to me, was at the opposite extreme from Sharansky – he was not free not to negotiate. Why? 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. In discussing the case Mnookin refers to Styron’s Sophie’s Choice 7 where Sophie is given the choice of saving one of her children from death or sacrificing both.
It is clear from Mnookin’s account that Kasztner had a long history as a negotiating fixer and presumably this was part of his habitual way of defining himself. 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. It mattered little how implausibly bizarre Eichmann’s demands became; negotiation was still the only game in town, an increasingly forlorn hope – but still a hope – of saving some lives. Mnookin’s 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. To be sure, questions could be asked about how much of Kasztner’s 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’s prospects for survival. Mnookin’s conclusion that it was not Kasztner but the Nazi regime that bore responsibility for the slaughter seems fair to me.
It is almost with a sense of relief that one turns to Churchill and Mandela. 8 In these cases, not only does Mnookin’s 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. Again, there is a question of past decisions, personal identity and the dissonance of going against the momentum they create. Churchill had long seen Hitler as evil and untrustworthy, just as he had a personal identity as leader and defender of the nation. In addition, he disliked indecision, once saying that he never worried about action, only about inaction. Consequently, thinking through may have had a high emotional cost for him since it implied delaying a decision. One suspects Churchill understood very well Hamlet’s observation that ‘…the native hue of resolution is sicklied o’er with the pale cast of thought’. 9 By temperament, Churchill was drawn to the native hue end of the business. Nonetheless, when pushed, he appears from Mnookin’s account to have passed the test – he thought through the decision whether to negotiate or fight and decided to fight.
It is no surprise that the case of Nelson Mandela is altogether extraordinary. 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. Those words could easily have been a guiding slogan for Mandela. Win-lose, either-or, no compromise. From such a starting point, the very idea of negotiation looks like a betrayal. And indeed, that was his starting point; but for him the momentum of past perceptions was not a predictor of his decision. Part of Mandela’s genius was looking to the future, envisioning it and holding that vision no matter how awful, how dangerous, the present circumstances. Thinking through for him was natural – 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 – but there was little chance of his getting stuck in a Hamlet-like paralysis by analysis. From his jail cell he moved decisively to initiate negotiations. 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. Only a person of outstanding willpower could have withstood the pressures; only a person of outstanding personality strength could have brought others with him. Mnookin makes no secret of his admiration, nor do I.
But the Mandela case illustrates another aspect of the ‘negotiate/fight’ decision that I would have liked Mnookin to address more fully. On the outskirts of Johannesburg there is an apartheid museum. Even a casual visit there takes three hours in order to grasp the full range of legal instruments, paramilitary force and restriction of freedom brought together to deny the rights of the majority of the population. Even with the knowledge that the regime eventually ended, a visit there is a sobering experience. 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. 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. Mandela was no pacifist: he had, when no change was possible, advocated violence against the apartheid regime. In the early pages of the book, 11 Mnookin investigates the wisdom of President Bush’s decision to invade Afghanistan rather than negotiate with the Taliban. Guided by a series of questions, he reviews the evidence and the thinking through, concluding that fighting was the correct decision. Fine. But we must allow a similar rationality to the dispossessed, accepting that they too may conclude fighting is the correct decision.
Clearly, this line of reasoning is fraught with danger. Many governmental and nongovernmental groups may claim to have thought things through and now feel authorized to practise violence. In outlining his framework Mnookin discusses the possibility of using coercive force and points out that it requires legitimacy. 12 But the full import of this point is blunted by his inclusion of lawsuits, strikes and lockouts in the list of coercive means. Such things are coercive but are different from violence. Lawsuits, strikes and lockouts are situations of high drama, huge emotion and easily entrenched thoughts of win-lose. But they are not normally accompanied by serious violence to the person. The decision to pursue such violence Violent action needs a particularly strong legitimacy. The costs in terms of human misery and the torn fabric of society may be incalculable. So, while defending the right of the dispossessed to adopt violence I would suggest adding some proviso like ‘where there are no political, legal, constitutional, diplomatic or other non-violent means of achieving a just outcome’. 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.
Even adding a blanket proviso may not be enough. The presumption in favor of negotiation needs to be strengthened and Mandela’s example does that. When, from prison, he made the first negotiating approach, not much had changed in the apartheid regime. International sanctions were hurting, yes, but practically no one would have conceived it possible that the white minority would soon agree to majority rule. Mandela’s initiative flew in the face of any rational calculation of the odds. It seems to have originated from, and hoped to engage, what Lederach has called the moral imagination, “the capacity to imagine ourselves in a web of relationships that includes our enemies”. 13 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. Mnookin, I think, would not disagree.
The transformational power of negotiation is beautifully illustrated in Mnookin’s non-political cases., The IBM-Fujitsu case is fascinating for its first-hand account of the very unusual blending of arbitration and mediation. 14 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.
Transformation doesn’t always happen. The divorce case 15 is sad because the attempt to get the party to think through her interests fails. Perhaps there was a fantasy that a judge would deliver a blow to the former spouse that the protagonist herself could not. Perhaps such fantasies in divorce cases need further investigation.
The final case, of a family disputing their father’s will, 16 has a happier outcome. It is notable for the risk Mnookin took in putting the focus on the relationship rather than the substantive issue of property. This is a perennial chicken-and-egg question: does improving the relationship facilitate substantive agreement or does engaging on substantive issues engender grudging respect?
I think that, sooner or later, the questions Mnookin asks will force us into a discussion of fundamental human rights. This is implied in his dealing with the limitations of the cost-benefit analysis approach 17 and in the book’s 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. Such questions are among the greatest challenges of our time, and one hopes the author will return to them in a later work.
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. In this goal he has succeeded handsomely and given us a book to return to often, to pause with open page, and think.
* Mnookin, R.,. Bargaining with the Devil. New York. Simon & Schuster (2010).
**Adjunct Professor in Management, J.E.Cairnes School of Business and Economics, National University of Ireland, Galway. He can be contacted at email@example.com
1 Bargaining with the Devil at 1
2 Id. at 27-32
3 Id. at 18-21
4 Id. at 104
5 Id. at 36-49
6 Id. at Chapter Four
7 Styron, W., Sophie’s Choice. New York. Vintage (1979).
8 Bargaining with the Devil Chapters Five and Six
9 Shakespeare, Hamlet Act 3, Scene 1
10 Bargaining with the Devil Chapter Seven
11 Id. at 2-3 and at 6-8
12 Id. at 29
13 Lederach, J.P., The Moral Imagination. Oxford. Oxford University Press (2005).
14 Bargaining with the Devil Chapter Seven
15 Id. at Chapter Nine
16 Id. at Chapter Ten
17 Id. at 263
18 Id. at 306