Bargaining with the Devil

1. Negotiation with adversaries requires a systematic cost-benefit analysis

When we feel like fighting, we may jump to the conclusion that negotiating a satisfactory resolution is simply out of the question.

Spock's five questions: To overcome knee-jerk impulses, systematically analyze:

1. Parties' interests
2. Alternatives to negotiation
3. Costs of negotiation
4. Potential agreements serving both sides' interests
5. Likelihood of implementation

This framework helps evaluate opportunities and risks objectively. While not infallible, it provides a structured approach to decision-making in high-stakes conflicts. Consulting advisors and exposing one's reasoning to rigorous questioning further improves the analysis.

2. Negative traps can cloud judgment in high-stakes conflicts

Not always, but more often than you feel like it.

Common negative traps:

• Tribalism
• Demonization
• Dehumanization
• Moralism
• Zero-sum thinking
• Fight/flight impulse
• Call to battle

These traps distort clear thinking and can lead to poor decisions. Recognizing and actively counteracting these tendencies is crucial. Seek diverse perspectives and challenge initial emotional reactions to avoid falling into these cognitive pitfalls.

3. Moral principles and pragmatism often clash in negotiation decisions

If you want to resolve the conflict and move forward, you may have to give the devil something you feel he doesn't deserve.

Tension between justice and resolution: Negotiating with adversaries perceived as evil often creates an internal struggle between moral principles and pragmatic goals. This dilemma is particularly acute for leaders acting on behalf of others.

Key considerations:

• Balancing backward-looking justice with forward-looking problem-solving
• Recognizing when moral stands may harm long-term interests
• Differentiating between personal moral intuitions and responsibilities to constituents

4. Effective negotiation balances empathy and assertiveness

Empathy requires good listening skills and the ability to demonstrate an understanding of the other side's needs, interests, and perspectives, without necessarily agreeing. Assertiveness requires the ability to state clearly and confidently the interests and perspectives of one's own side.

Dual challenge: Negotiators must simultaneously:

1. Understand the other side's perspective
2. Clearly articulate their own interests

This balance is critical for:

• Building trust and rapport
• Identifying potential areas of agreement
• Maintaining credibility and respect

Strategies to improve:

• Active listening techniques
• Practicing "looping" (reflecting back what you've heard)
• Separating people from the problem

5. Negotiation can be heroic, even with evil adversaries

Paradoxically, Mandela's attitudes toward these whites softened during his years of incarceration.

Nelson Mandela's example: Mandela demonstrated that negotiating with oppressors can be a powerful and courageous act. His approach included:

• Avoiding demonization of opponents
• Seeking to understand adversaries' fears and motivations
• Maintaining core principles while showing flexibility on implementation
• Building personal relationships across deep divides

This strategy allowed Mandela to achieve through negotiation what could never have been accomplished solely through violence or resistance.

6. Leaders must prioritize pragmatism over personal moral intuitions

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

Leadership responsibility: Leaders acting in a representative capacity have an obligation to:

• Carefully assess expected consequences of alternative actions
• Be guided by that assessment rather than personal moral intuitions
• Consider long-term interests of constituents over short-term emotional satisfaction

This approach may require making difficult choices that go against personal preferences but better serve the overall interests of those being represented.

7. Mediation can resolve deep-rooted family conflicts

Family mediation is so stressful that I try to keep the sessions relatively short and the agendas limited.

Effective family mediation:

• Focuses on interests rather than positions
• Encourages direct communication between parties
• Helps reframe conflicts in neutral terms
• Explores creative options for resolution

Key strategies:

• Short, focused sessions
• Careful agenda setting
• Balancing emotional and practical concerns
• Identifying shared interests and goals

Family conflicts often involve deep-seated emotions and long-standing grievances. Skilled mediators can help parties move beyond blame to find mutually beneficial solutions.

8. Creative problem-solving can overcome seemingly intractable disputes

I am not saying that Fred and Evelyn are completely ignoring the need for analysis and relying solely on intuition. Rather, I believe that they each started with a gut reaction to your news about Bikuta, jumped to a conclusion, and then hired the analytical system as a lawyer to argue the case.

IBM-Fujitsu case study: This complex intellectual property dispute was resolved through:

1. Innovative "med-arb" process combining mediation and arbitration
2. Creation of a custom-designed "Secured Facility Regime"
3. Focus on future-oriented solutions rather than past grievances

Key lessons:

• Be willing to design entirely new processes
• Look for ways to align incentives and create value
• Address underlying relationship issues, not just legal claims

Creative approaches can find win-win solutions where traditional methods fail.

9. Changing negotiation culture requires ongoing reinforcement

Change also requires motivation, which can't be faked.

San Francisco Symphony case: Initial success in transforming labor-management relations proved difficult to sustain due to:

• Turnover in key personnel
• Lack of ongoing training and education
• Reversion to adversarial habits under pressure

Lessons for cultural change:

• Provide continuous reinforcement of new approaches
• Educate all stakeholders, not just negotiators
• Build internal capacity to maintain new practices
• Address systemic incentives that may undermine cooperation

Changing deeply ingrained negotiation habits requires sustained effort and institutional commitment.

10. Presumption favoring negotiation helps overcome cognitive biases

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.

Overcoming biases: A presumption favoring negotiation serves as:

• A safeguard against negative traps and emotional reactions
• A tool to encourage careful analysis of alternatives
• A way to shift the burden of proof onto those opposing negotiation

This presumption is rebuttable—if careful analysis shows negotiation is unwise, don't do it. However, it provides an additional check against hasty decisions driven by anger, fear, or other distorting emotions.

Applying this presumption can lead to more thoughtful decision-making in high-stakes conflicts.

Last updated: February 23, 2025