This report will explore some of the concepts set forth by Harvard Law School Professor Robert H. Mnookin in his book, Bargaining with the Devil: When to Negotiate, When to Fight, Simon & Schuster, New York, (2010).
Negotiation: lawyers do it all the time. Lawyers are negotiators. We negotiate with ourselves, family members, sales people, law partners, clients, opposing lawyers, mediators, judges and others. Yet few have ever learned the strategies and techniques of effective negotiation and fewer have mastered negotiation skills. Are our family law clients angry at the evil their spouse has done to them? Mnookin’s masterly analysis of real cases in Bargaining with the Devil, including what he refers to as “Devilish Divorce” and “Sibling Warfare” in a probate dispute can help you in your family law negotiations. Have you or your client demonized the other spouse or lawyer? Mnookin provides five basic questions to ask when negotiating with an adversary:
“1. Interests: What are my interests? What are my adversary’s interests?
2. Alternatives: What are my alternatives to negotiation? What are my adversary’s alternatives?
3. Potential negotiated outcomes: Is there a potential deal (or deals) that could satisfy both parties’ interests better that our alternatives to negotiation?
4. Costs: What will it cost me to negotiate? What do I expect to lose in terms of tangible resources: money and time? Will my reputation suffer? Will negotiating set a bad precedent? (Will negotiating set a good precedent?)
5. Implementation: If we do reach a deal, is there a reasonable prospect that it will be carried out?” Bargaining with the Devil, pp. 27-28.
One incredibly interesting chapter in Bargaining with the Devil is about Nelson Mandela and his decision to negotiate with those who imprisoned him. Mandela mastered the tension between empathy and assertiveness and won his release. Mnookin describes Mandela’s achievement as extraordinarily remarkable. “In fact, I would award him the title of the greatest negotiator of the twentieth century.” Bargaining with the Devil, p. 135. Mnookin then states, “…the most important lesson goes to the core of this book: We must reject as foolish the categorical claim that it is wrong to negotiate with an evil adversary. Mandela hated the apartheid regime, which most people would agree was evil. But he didn’t demonize whites, including those who participated in the oppressive regime. Mandela was able to separate the people from the problem.” Bargaining with the Devil, p. 135.
“….divorce can be best understood not as a single event (like the issuance of a court decree) but as a continuing process that can begin long before a spouse files for divorce and continue long after the decree is issued.” Bargaining with the Devil, p. 214. Family disputes can trigger genuinely hard distributive problems, particularly when the property cannot be carved up into neat shares, the value is uncertain and it holds sentimental or symbolic value. Id. p. 235. In family disputes there is no separating the relationship issues from the substantive issues. Id. p.260.