BARGAINING
WITH THE DEVIL
When to Negotiate,
When to Fight
ROBERT MNOOKIN
ROBERT MNOOKIN is professor of law at Harvard Law School, the director of the Harvard Negotiation
Research project and chair of the Program on Negotiation at Harvard Law School. Dr. Mnookin has taught
several workshops on negotiation skills for corporations, government agencies and law firms. He is the author
of nine books including Beyond Winning, Negotiating on Behalf of Others and Barriers to Conflict Resolution
as well as numerous articles. Dr. Mnookin has been involved in resolving numerous landmark commercial
disputes including that between IBM and Fujitsu over operating system software and between Boston
Scientific and Medinol over intellectual property rights. Dr. Mnookin is a graduate of Harvard College and
Harvard Law School.
The Web site for this book is at www.BargainingWithThe Devil.com.
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Bargaining With the Devil - Page 1
MAIN IDEA
If someone does you wrong in business or in life, should you bargain with them or ignore them and go straight to warfare or litigation?
This is actually a highly strategic question and one of the most challenging issues in any negotiation. If you attempt to make a deal with
the other party, you are in effect legitimizing their authority and position. For example, if a government negotiates with terrorists, then
it is effectively stating the terrorists have a point and are worth speaking to in order to come to some sort of mutual arrangement. In a
way, this can be viewed as a form of rewarding bad behavior.
So, should you try to resolve any and all conflicts through negotiation rather than fighting it out? The answer depends on all kinds of
different factors but you should have a bias towards negotiating wherever and whenever possible. You’ll increase the odds you will
achieve more if you do
1. The three challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pages 2 - 5
When trying to resolve a conflict, there are generally three challenges which affect your ability to make a
good decision on whether to negotiate or not:
1 You have to avoid all the emotional traps
which can lead to a knee-jerk reaction
The three You have to analyze the cost and benefits
challenges 2
of negotiating versus all other viable alternatives
3 You have to address all the moral and ethical issues
involved in deciding whether to negotiate with an enemy
2. A framework for making a decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pages 6 - 7
Once you understand what all the potential challenges or traps are, you’re then better positioned to make a
decision on whether to negotiate or not. A good starting point is to use this kind of idea flowchart as the
framework for your decision:
1 What are the interests and key issues
Interests
at stake for all the different parties?
2 What alternatives to negotiation exist and
Alternatives
look viable and potentially enforceable?
Should you
negotiate? 3 What are the costs to each side if Costs
they do enter into negotiations?
4 Are there potential agreements which would Outcomes
be better for all sides than negotiating?
5 If a deal is reached, what are the Implementation
odds it will actually be enforced?
3. Four general guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8
Whether or not you choose to bargain with the devil always involves some form of dynamic tension
between a desire to move forward and the necessity to give the other party something they don’t in fact
deserve. It’s the conflict between principle and pragmatism. There aren’t any immutable commandments
which will always apply. Instead, four general guidelines you should try and keep in mind are:
1 Be systematic in evaluating the expected
costs and benefits of negotiation
2 Never do an analysis alone – get advice
Four from others in evaluating alternatives
guidelines
3 Have a bias in favor of negotiation
– but make it rebuttable
4 Don’t allow your own moral beliefs to color
a pragmatic assessment of benefits
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