Negotiation Expert Robert Mnookin Answers Your Questions

BY Paul Solman  August 31, 2010 at 12:26 PM EST

Last week, Paul Solman spoke with Harvard Law School professor Robert Mnookin, an expert on negotiation, about his new book “Bargaining with the Devil: When to Negotiate, When to Fight.” Mnookin offered to take some viewer questions. Here are his replies:

SEAN KLONARIS: How does one open up an individual to even get to the negotiating table in the first place? Many times I have dealt with people so certain in their opinions that they treat them as “facts” and they are not open to even consider discussing the options. How to deal with this?

ROBERT MNOOKIN: The best way to get someone to the negotiating table is to persuade them it can serve their interests — that they might well be better off with a negotiated resolution than their alternative. There are two aspects of this. First, and most importantly, you should work to understand their long-term interests and then demonstrate to them that you understand them.

Second, you should explain why, from their perspective, their best alternative if they refuse to negotiate might well serve their interests far less well. The key notion is to invite them to engage in problem solving where you search for options that better serves their interests and your interests than your alternatives away from the table.

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T.: I’m surprised that, apparently, no one has asked for your opinion on the current controversy surrounding the building of the Islamic community center in New York. It seems to me that, even though they have a right to build it there, because of all the ill feelings and controversy, perhaps they should negotiate with offers that have been made to assist in moving it. Wouldn’t it be a win-win situation if a community center was still built, but at a location less offensive to the victims of 9/11 and the 70 percent of people reported to be against the location now? If the real purpose for this building was to promote peaceful relations with Muslims, it appears that the choice of the location is hurting, rather than helping to reach that goal.

ROBERT MNOOKIN: You make an interesting point. While it would be wrong, and in my view unconstitutional under the First Amendment, for the government prohibit the building of an Islamic community center at the proposed location, it might well better serve the interests of the community center to enter into negotiations where it agreed to relocate to a less-sensitive location, perhaps in exchange for some other benefits. Imagine, for example, if some philanthropist offered to fund for several years some community-based programs that would benefit Muslim children if it located a few blocks away.


MELANIE M. MICHEL: I cannot see the point of bargaining with someone who is known to lie about anything and everything. As a case in point, if the company you are bargaining with is listening to your grievances about your sales route and promising their business is expanding, there will be more clients, etc. and then undercutting the existing clients by taking orders through a new website and having them dropshipped through UPS! What is to negotiate? They have been boldfaced liars. Encouraging you to stay on, etc. instead of being forthcoming and honest then the whole time shorting your pay on the sales you have made! This is how corporations, politicians and leaders of countries make their money: keep the uninformed totally uninformed until they do not need them anymore and in the mean time ruin them financially so they can’t afford to fight. Shorting on the pay when you are planning on the commissions, the credit cards get used that were just paid off, then the other pay comes in and by then so do the fees on the payments of other things missed. And then you think of the times that you thought they were human; took your time to discuss the problems with the route and pay to management, and the whole time laughing at your predicament and enjoying your demise. Same attitude with the Taliban, Iran, North Korea toward the U.S. Don’t know that war is the answer, but certainly negotiating is not an option. To negotiate there has to be trust.

ROBERT MNOOKIN: You suggest that you can only negotiate with people you trust. I disagree. It often makes sense to negotiate with people you mistrust, provided you carefully build into any agreement enforcement mechanisms that can give you effective remedies if they break their word. This is not to deny the obvious reality that it is much easier to negotiate with someone you know will never lie and will always keep their word. But in the real world, people sometimes cheat. Moreover, we often do business with strangers where we don’t know how trustworthy they are. It was President Reagan who said: “Trust but verify.”


CHARLIE LESTER: I have been in weekly contact with my bank since December 2009, trying to obtain a mortgage modification under the Making Homes Affordable program. Apparently an underwriter, or perhaps a negotiator, will call me soon on my cell phone, when I may be in the bathroom or in a doctor’s waiting room, to discuss the new terms. I was told by one voice, at the other end of the wire, that I may have only five days to make a final decision.

I understand generally how to analyze of what might be offered, but am worried about tying down all the many variables. I can’t afford to pay a CPA or a lawyer for hours of time. The pressure to negotiate just the perfect set of terms to save my home, dealing with an all-powerful — but invisible and perhaps pushy — bank representative, is enormous. What can I do to negotiate intelligently?

ROBERT MNOOKIN: I wish you luck in what surely is a stressful negotiation. Your instinct to seek advice from an experienced professional is a good one. In many communities, the local bar association offers legal aide. There are also various resources available online.


SHARON: I enjoyed the segment on your Harvard students in negotiation. I will be purchasing your book tomorrow. I would like your advice, please, on the following.

My two sisters and their husbands are taking legal action against me for a multifarious number of quite strident and often laughable allegations, most of which are not legally actionable. The attorney is the husband of one of my sisters, my brother-in-law, so he has a personal stake in the outcome. We’ve been litigating for over two years with no end in sight for at least another year or so. Out of all the allegations, the only legally serious one is that they allege that I took advantage of my father by cajoling him into giving me money before he died. It was a gift; he was mentally competent to his death, and I have evidence (witnesses and a forgiveness document from my father) that I did not purloin the money as my sisters are alleging. As trustee, I can use the trust funds for litigation, and it is costing far more than anything my sisters allege I owe the trust (which is actually nothing.) How can we negotiate in a reasonable manner? They have all the facts, yet they persist. I don’t understand how they can’t see that the cost of the litigation is hurting them by significantly reducing the amount they will receive at distribution. Even if they prevail partially, it will be a Pyrrhic victory. If I prevail, which is highly likely, they will have to pay for all the litigation, and they will have lost more than they are alleging I took unlawfully. How is it even possible to deal with unreasonable, intransigent people?

Any advice you can offer would be greatly appreciated. Thank you.

ROBERT MNOOKIN: Your case is a perfect example of a “lose-lose” legal conflict. It also sounds like an ideal case to hire a neutral mediator to facilitate negotiation — i.e., help all the parties and their lawyers search for constructive options that would better serve everyone’s interests than continued legal conflict.


MARILYN SEIKER: Describe how you would negotiate toward a two-country solution with Israel and Palestinians.

ROBERT MNOOKIN: If there is to be a two-state solution, we all know what the deal must be. President Clinton spelled out the parameters some years ago. Moreover, I think it reasonably clear that moderate Israelis and moderate Palestinians would be willing to accept that deal. The core problem is that there are profound conflicts “behind the table” within each community that make it very difficult for a leader on either side to agree to the deal.

Among the Israelis, while there is a majority who would be prepared to give up the West Bank, there is a substantial minority of Jews — the national religious settlers in particular — who vehemently oppose relinquishing the West Bank. Prime Minister Netanyahu’s present coalition would be shattered if he agreed to the deal. Since Netanyahu is a conservative, however, if he were to agree to the “deal” he might be able to build a new coalition. And like “Nixon going to China,” his support might persuade some of those who might otherwise oppose the deal.

I am not at all optimistic that Abu Mazen could sell the deal on the Palestinian side. Among the Palestinians the the internal conflict between Hamas and Fatah is profound. If Abu Mazen would agree to the “deal,” I doubt that Hamas would accept it. Fatah does not control Gaza.

All of this is to suggest that there is little reason for optimism in the short run. What the Palestinians need is a leader with the charisma to bridge the differences.

So what would I do? I would urge the Israelis to release from prison the one Palestinian who might be able to bridge the conflicts “behind the table” among Palestinians: Marwan Barghouti, Fatah-Tanzim leader, who is serving five life sentences for attacks which left five people dead. Palestinian students I interviewed on my last trip to the West Bank saw him as a hero.

This entry is cross-posted on Paul Solman’s Business Desk blog.