Bargaining with the Devil

by Robert Mnookin

In assessing the costs and benefits of the alternatives, members of your team may disagree. They may be making different trade-offs and predictions, or different value judgments about what counts as a benefit and what counts as a cost. Exposing these differences is helpful, for it will better ensure a considered decision.

  3. Have a presumption in favor of negotiation, but make it rebuttable.

  Suppose your advisors disagree. Suppose that after thinking it through carefully, your mind is in equipoise—you think the costs and benefits of negotiating are roughly equal to those of not negotiating. In case of such a “tie,” I would apply a presumption in favor of negotiation.

  Now the obvious question is: Why tip the scales in favor of bargaining with the Devil? Why not be neutral, or even have a presumption against negotiation? After all, this is the Devil we’re talking about!

  The reason for the presumption is to provide an additional safe-guard against the negative traps: Tribalism, Demonization, Dehu-manization, Moralism, Zero-Sum Thinking, the Impulse to Fight or Flee, and the Call to Battle. As we’ve seen, these traps can distort clear thinking. And their effect can be subtle. You may think you’re en-gaging in pure Spockian analysis, but you may be fooling yourself. The traps may already have sprung. You may be starting with your conclusion—having already intuitively decided what to do—and selectively looking for evidence to justify it. My presumption can mitigate this risk.

  Apart from breaking ties, my presumption operates in a second way. It puts the burden of persuasion on those who don’t want to negotiate. Think of your pugnacious brother-in-law Fred Kramer from the early chapters, who wants to sue Bikuta. My presumption would require him to stop spouting clichés and explain why a lawsuit makes practical sense. It also puts the burden of persuasion on that part of yourself that wants to fight; it will force you to justify that impulse.

  Note that my presumption is not a flat rule. It is simply a guideline—and it is rebuttable. If you think the situation through and decide you are better off refusing to negotiate, the presumption is overcome. We’ve seen several examples in this book.8

  4. When deciding on behalf of others, don’t allow your own moral intuitions to override a pragmatic assessment.

  When it comes to making decisions that involve a perceived “devil,” there is a difference between individuals acting solely on their own behalf and those acting in a representative capacity—deciding on behalf of others. For an individual, a decision to override a pragmatic assessment based on moral intuitions may be virtuous, courageous, and even wise—as long as that individual alone bears the risks of carrying on the fight. This is not true for a business executive deciding on behalf of a corporation, a union representative acting on behalf of a union, or a political leader acting on behalf of his nation. Perhaps not even for a parent acting on behalf of a child.

  A person acting in a representative capacity not only must carefully and rationally assess the expected consequences of alternative courses of action, but also should be guided by that assessment. If cost-benefit assessment favors negotiation, I think it is improper for the representative to decide nonetheless to go to battle based on his personal moral intuitions.9

  This last guideline brings to mind the challenges facing our national leaders in deciding whether to negotiate with terrorists or leaders of evil regimes.10 In the Introduction, I said that my personal journey began shortly after 9/11, when President Bush had to decide whether to accept Mullah Omar’s invitation to negotiate with the Taliban, which then controlled Afghanistan. I explained why, after applying my framework, I agreed with Bush’s decision not to negotiate with the Taliban. But I must confess that I became increasingly troubled during the remainder of his two terms with his general approach to the questions at the heart of this book. Indeed, there is evidence that the president violated all four of my guidelines. Let me explain.

  1. According to Scott McClellan, the former White House press secretary, President Bush disliked and avoided systematic cost-benefit analysis of different policy options, preferring to make decisions based on his instincts. “President Bush has always been an instinctive leader more than an intellectual leader. He is not one to delve deeply into all the possible policy options—including sitting around engaging in extended debate about them—before making a choice. Rather, he chooses based on his gut and his most deeply held convictions. Such was the case with Iraq.”11 In other words, Bush was not a Spockian.

  2. President Bush, of course, had any number of foreign policy advisors. But there is evidence that his “War Cabinet” acquiesced without pushing him very hard to think through costs and benefits, opportunities and risks. According to McClellan, “[O]verall, Bush’s foreign policy advisors played right into his thinking, doing little to question it or to cause him to pause long enough to fully consider the consequences before moving forward. And once Bush set a course of action, it was rarely questioned. … That was certainly the case with Iraq. Bush was ready to bring about regime change, and that in all likelihood meant war. The question was not whether, but merely when and how.”12

  3. President Bush’s administration did not apply a presumption in favor of negotiation. Indeed, its rhetoric suggests quite the opposite. As Vice President Dick Cheney declared shortly after September 11, “I have been charged by the president with making sure that none of the tyrannies of the world are negotiated with. We don’t negotiate with evil; we defeat it.”13 This implies a strong presumption—if not an absolute rule—against negotiation with “evil” regimes.

  4. In refusing to negotiate with certain regimes, President Bush may have allowed his moral intuitions to override more pragmatic choices that would have better served the interests of the American people. His rhetoric was highly moralistic,14 often strident, and made frequent references to concepts of good and evil.15

  Of course, rhetoric and decision-making are not the same thing. The president’s decisions may well have been made on the basis of a pragmatic comparison of the costs and benefits of different alterna-tives, and then only justified publicly on the basis of morality. With-out looking behind the veil, it is of course impossible to know. But a number of the administration’s decisions and policies are consistent with the rhetoric. Bush did not negotiate with Saddam Hussein but instead invaded Iraq. His administration consistently refused to negotiate directly with Iran. And the administration refused to negotiate bilaterally with North Korea concerning its nuclear program. I am not going to explore here the wisdom of these particular decisions. Instead, my point is that President Bush may have relied on his own moral intuitions rather than a careful, pragmatic assessment of the alternatives.

  President Barack Obama’s strategy and rhetoric are much more consistent with my approach. He avoids public statements that demonize regimes or their leaders. The following example, regarding relations with Iran, is worth quoting at length because of its sophistication and good sense:

  As odious as I consider some of [Iranian] President Ahmadinejad’s statements, as deep as the differences that exist between the United States and Iran on a range of core issues … the use of tough, hard-headed diplomacy, diplomacy with no illusions about Iran and the nature of the differences between our two countries, is critical when it comes to pursuing a core set of our national security interests, specifically, making sure that we are not seeing a nuclear arms race in the Middle East triggered by Iran obtaining a nuclear weapon, making sure that Iran is not exporting terrorist activity.16

  In other words, President Obama is not only willing to negotiate with evil, his rhetoric implies a presumption in favor of it.17 He is focusing on American interests—avoiding nuclear proliferation and not exporting terrorism.

  That I like his approach does not mean that in the years to come President Obama’s decisions will necessarily be wise. As of this writing in 2009, President Obama is still in the first year of his presidency. It is too soon to tell how his approach will translate into practice.

  President Obama faces many
of the same foreign policy dilemmas that President Bush did. Should we negotiate with the Taliban, Hamas, or Hezbollah? Even though none of these groups currently controls a national government, they each have the capacity to harm the United States. It is easy to imagine possible deals that might serve U.S. interests but would expose a tension between pragmatism and principle.18 Should we negotiate with Iran and North Korea, and if so, how? I am eager to see how President Obama manages the tensions we’ve explored in this book. As he and future presidents grapple with these questions, we as citizens will have to decide for ourselves whether their decisions are wise.

  My goal in writing this book was not to offer easy answers. I end my journey with a deep sense of humility. Deciding whether to negotiate with the Devil poses profound questions and this book is hardly the last word. But my approach should allow you to think more clearly about how to navigate this terrain with integrity—and wisdom.

  Acknowledgments

  It took a village. While I am the sole author of this book and responsible for every word, many people contributed to its development.

  My primary focus—both as a scholar and a professional—has been negotiation and dispute resolution. As a student of human conflict, I have always borrowed and adapted insights from academic disciplines outside the law in my work. During the past twenty years it has been my profound good fortune to have been part of interdisciplinary research projects that involved distinguished scholars with disciplinary training in other fields.

  In 1988, Kenneth Arrow (an economist), Lee Ross (a social psychologist), Amos Tversky (a cognitive psychologist), Robert Wilson (a game theorist), and I co-founded the Stanford Center on Conflict and Negotiation. For five years, I served as SCCN’s director, and the five of us explored together, from different disciplinary perspectives, why negotiations fail. Close readers of this book will find evidence of my enduring intellectual debt to these exceptional scholars. With Lee Ross, I’ve had a continuing conversation about the ideas I have developed here. Shortly before the book went to press, he graciously reviewed several chapters.

  In 1993, I moved to Harvard Law School to become chair of the Program on Negotiation (PON), which has been my intellectual home ever since. At PON I was welcomed by three giants in the field of dispute resolution: Roger Fisher, Frank Sander, and Howard Raiffa. All have served as mentors and inspirations. Many PON colleagues directly contributed to the development of this book. Gabriella Blum deserves special thanks. Shortly after 9/11, when Gabby was a graduate student, I began thinking about the limits of negotiation. The work that Gabby and I did together served as a foundation for many of my core ideas. Max Bazerman, Iris Bohnet, Joshua Greene, Susan Hackley, Jeswald Salacuse, James Sebenius, Guhan Subramanian, Larry Susskind, and Bill Ury read drafts of particular chapters and offered insightful comments. Alain Verbeke, my dear Belgian friend who as a Harvard visiting professor has spent time with PON, read the entire manuscript.

  Others at Harvard helped me along the way. On two occasions, I presented portions of this book to the Law School’s Faculty Workshop. A number of my Law School colleagues offered helpful suggestions: Richard Fallon and Detlev Vagts are owed special thanks. Two remarkable deans—Elena Kagan and Martha Minow—offered much encouragement and support while I pursued this project. Financial support from the Law School and the Harvard Negotiation Research Project allowed me to hire gifted student research assistants, who tracked down sources, wrote background memoranda, and checked citations. This book wouldn’t exist without the help of Nahi Benor, Devin Cohen, Martin Gelter, Joel Knopf, Nicola Carah Menaldo, Alyssa Saunders, Eli Schlam, Ravi Shankar, Karen Tenenbaum, Michelle Wu, and Boris Yankilovich. Students in my Fall 2009 Law School seminar critically read the penultimate draft of this book and made any number of constructive suggestions. My faculty assistants (first Bonnie Rubrecht and now Caryn May) patiently prepared the manuscript, which went through many drafts.

  I decided to write this book during the Spring of 2007, when, thanks to Claude Steele, I was a returning Fellow at the Center for Advanced Study in the Behavioral Sciences. While I was thinking through its themes and how I might shape a book that would reach an audience beyond the academy, many colleagues there helped me. Special thanks go to David Perkins, Erica Goode, and Jack Rakove. At the Center that Spring, I began a conversation about this book with my friend Robert Axelrod that continued through its gestation. Bob graciously read and commented on an early draft of nearly the entire book. Jeffrey Seul and Harvey Saferstein also provided useful comments on a number of chapters.

  Many people helped me with specific chapters. My daughter Jennifer Mnookin, a law professor at UCLA, provided me with some useful ideas of how best to organize the Introduction. Richard Goldstone, who played a role in the transformation of South Africa, reviewed the Mandela chapter. Miki Breuer, who as a young man lived through the horror of the Nazi occupation of Budapest, and Professor Pnina Lahav graciously read and reviewed the chapter on Kasztner. A conversation with my son-in-law, Professor Joshua Dienstag, helped me untangle the various moral issues implicated in the Kasztner chapter. Gary Bass and William Forbath graciously read the international chapters. Three leading members of the Boston matrimonial bar—Matthew H. Feinberg, David Hoffman, and David H. Lee—reviewed the divorce chapter.

  For the chapter concerning the IBM-Fujitsu dispute, in order to check my own recollections and impressions, I recontacted during the past two years a number of the lawyers and executives involved in the dispute. Many reviewed my draft for accuracy. Thanks go to Anthony Clapes, Joseph Davies, Dan Evangelista, Jonathan Greenberg, Michael Jacobs, Masanobu Katoh, William McFee, Rory Millson, Preston Moore, William Schwartz, Martin Senzel, and the late Michio Naruto.

  For the chapter on the San Francisco Symphony, I am grateful to Brent Assink, Robert Couture, Joel Cutcher-Gershenfeld, Gary Friedman, Chris Gilbert, Tom Hemphill, Peter Pastreich, and Doug Stone. Gary also reviewed the chapters on family devils. Gary and I have taught mediation together for years, and much of what I know about the dynamics of conflict I have learned from him.

  In my work with the Symphony and with IBM and Fujitsu, the disputants gave me permission to tell the story of their conflicts. Other parts of this book are based on real disputes where for reasons of privacy and confidentiality I have changed identifying characteristics of the people involved. I wish I could thank these people by name, as well as scores of others who have taught me so much over the years in my work as a mediator.

  My agent, Jim Levine, understood from the beginning what I hoped to do with this book. He patiently helped me shape the proposal that led to the contract with Simon & Schuster. Jim also carefully read every chapter and offered outstanding editorial advice. My lead editor at Simon & Schuster was Alice Mayhew, who well deserves her reputation as one of the greats. This was my first book aimed at a general audience, and Alice’s encouragement as she read draft chapters along the way meant a great deal to me. Roger Labrie, Karen Thompson, Gypsy da Silva and the entire Simon & Schuster team made the publication process a pleasure.

  My greatest editorial debt is owed to Kathy Holub, who worked with me during the last eighteen months as an editor and writing coach. This book consists of stories as well as ideas. Kathy helped me create the narrative structure for these stories, using my historical research, recollections, and experiences. Whip in hand, she kept me on the schedule that I had set for myself. As I sent her chapters (and portions of chapters) Kathy went through my prose word by word, line by line and unfailingly improved my writing. She had the guts to challenge my ideas, she pushed me to clarify and simplify my language, and most of all she pushed me to say what I really thought. Each chapter went through an iterative editorial process that involved more redrafting than either of us cares to remember. Because of her help, this book is far livelier and far more personal than it would have been had I simply been left to my own devices.

  Alas, much of the time to think and write came out of hours that would otherwise ha
ve been spent with my wife, Dale Mnookin, the love of my life, who has put up with me now for forty-six years. Were it not for this book, we both would have spent more time in California with our daughters, Jennifer and Allison, their husbands, Joshua and Cory, and our four glorious grandchildren to whom this book is dedicated. I suspect my golf game would have been better as well. But then again, I love my work and feel I’m just getting warmed up.

  Robert Mnookin

  Cambridge, MA

  November 2009

  Notes

  INTRODUCTION

  1. Omar asked the United States to provide proof that bin Laden was implicated in the attack and allow the Taliban to judge its adequacy. He also suggested that his regime might be willing to try bin Laden before an Islamic court in Afghanistan or elsewhere. Mohammed Omar, Address to Ulema at Kabul, Sept. 19, 2001 (transcript on file with author).

  2. In his 2005 Tanner Lectures, Avishai Margalit has written about the “clash between peace and justice,” and suggests that there are “indecent compromises” and “rotten” bargains. Avishai Margalit, “Indecent Compromise,” in the Tanner Lectures on Human Values (delivered at Stanford University, May 2005). See http://www.tannerlectures.utah.edu/lectures/documents/Margalit_2006.pdf. For a more extended discussion published after this book was in press, see Avishai Margalit, On Compromise and Rotten Compromises (Princeton, N.J.: Princeton University Press, 2009).

  3. With the benefit of hindsight, it might be easy to say that Bush made the right decision. The United States’ quick military victory swept the Taliban from power and eliminated the large terrorist training camps operated by al-Qaeda in Afghanistan. On the other hand, a critic might point out that we failed to capture bin Laden or eliminate al-Qaeda, and the Taliban became a powerfully disruptive influence in Afghanistan and parts of neighboring Pakistan. But as I’ve said, after-the-fact analysis isn’t what this book is about.