Bargaining with the devil: When to negotiate, when to fight, Robert Mnookin, Simon & Schuster (2010)


Bargaining with the devil is a metaphor for whether one should negotiate with or fight a bitter foe.  Mnookin argues that it is usually better to negotiate, but not always, and he supports his viewpoint with a series of real life situations – political, business, and personal.  The political disputes have been well researched, and he was a participant in the business and personal cases.


I loved the examples, which ran the gamut from whether the British should have negotiated with the Nazis in May 1940 (the idea seems absurd today, but things were not so clear at the time) to how the author taught entrenched parties at the San Francisco Orchestra to engage in IBB (interest-based bargaining).  Every situation is unique, and each of them is clearly described – including technical aspects (which in the case of the IBM/Fujitsu settlement were particularly complex) and the personalities of the key players. 


Why negotiate?  The alternatives (war, litigation, etc.) are generally difficult, expensive, and risky. It may be possible to obtain a better outcome through negotiation, while ensuring against a catastrophic loss.  Feelings that the other side is evil or deserves to be punished for past misdeeds often do not withstand scrutiny; indeed such feelings can be “traps” that divert one from negotiating.  And while a person may legitimately decide that making a deal is incompatible with his sense of self, as Anatoli (Natan) Sharansky did in refusing to get to know his Soviet captors, taking such a stance while representing the interests of others is dubious.


On the other hand, negotiation should be ruled out if it is possible to gain a better outcome without it.  Even when preparing to negotiate, one should always assess the probable outcome in the absence of negotiations and guard against giving too much away.  Negotiation costs should taken into account, both financial and psychological.  Finally, there may be legitimate reasons to feel that the other party is untrustworthy, and that any deal arrived at will be unenforceable.  For all his good intentions, Rudolf Kasztner’s efforts to negotiate with Adolf Eichmann for the lives of Hungarian Jews are deservedly controversial.


Even after the parties decide they can negotiate with each other, much remains to be done.  The task of crafting practical, verifiable terms can take imagination, skill and persistence.  Thus, in the IBM-Fujitsu dispute, the parties had negotiated a previous settlement – but their failure to nail down the details had led to renewed conflict that made the situation even worse and necessitated the involvement of world class outside help.


Attorneys involved in arbitration or mediation will find this book instructive. “Bargaining with the Devil” should also be of interest to people involved in or affected by political, business or personal negotiations, i.e., pretty much everyone on the planet.  Don’t miss it!