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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Negotiation Studies – 3 Tips for Bargaining with the Devil

Posted in Settlement

Harvard Law Professor Robert Mnookin has written a lot about negotiation. Seriously, a lot. His most recent book, Bargaining with the Devil, is about how to negotiate long-standing conflicts with lots of bad blood. Or, as he puts it:

By "bargain" I mean attempt to make a deal–try to resolve the conflict through negotiation–rather than fighting it out. By "Devil," I mean an enemy who has intentionally harmed you in the past or appears willing to harm you in the future. Someone you don’t trust. An adversary whose behavior you may even see as evil.

(Emphasis added.)  Mnookin’s primary concern with "bargaining with the Devil" is that negotiating with an enemy carries with it a number of "negative traps," patterns of thought and behavior that leave the parties mired in conflict instead of actually resolving issues. He examines this issue through the lens of three primary examples: (1) Nelson Mandela’s discussions with the Afrikaner government; (2) the resolution of a long-standing legal dispute between IBM and Fujitsu; and (3) a bitter labor dispute at the San Francisco Symphony Orchestra.

Among the most useful lessons Mnookin offers:

Beware of preconditions. As Mnookin points out, preconditions are often designed to deprive the other side of any leverage (by, for example, taking the only issues one side cares about off the table). As a result, they send an unequivocal signal that one side is not actually interested in negotiating through the issues. So the next time plaintiffs’ counsel tells you that they’re happy to talk settlement, but only on a classwide basis, save yourself the time. She’s just told you she’s not ready to talk yet.

Personal connections can be important. Often the mere act of dealing with a rival feels like too much of a compromise. I have certainly, in my time, dealt with clients who believed that even dignifying a class action complaint with negotiation was doing nothing more than encouraging bottom-feeding behavior. (In some cases, they were right. But in some cases, the refusal to negotiate more knee-jerk than considered.) How does one make it past this initial reluctance to negotiate? Mnookin offers the example of Nelson Mandela, who was able to secure compromises from the all-white South African government by making (and then maintaining) personal connections with individual Afrikaner leaders. Once they had a personal connection to Mandela (as well as a sense of mutual respect), they could "make concessions and yet maintain one’s self-respect."

Reinforce the value of cooperation to your own side. Mnookin draws on Robert Putnam’s work on two level games. He points out that in resolving a dispute, both parties usually must deal with disgruntled (and possibly polarized) constituents back home. And, as Mnookin points out, no matter how skilled the negotiator is, if her constituents do not understand the importance of compromise, then there will not be an agreement. His suggestion? Continually reinforce the benefits of any compromise with your constituents.

I have a much deeper understanding of how difficult it is to change the negotiation culture of an organization. It requires not simply initial "buy-in" but constant reinforcement. … Without this reinforcement, their natural fears–the negative traps–may reappear.

Mnookin’s work is useful for class-action defendants on two levels. First, since there does tend to be some polarization and demonization between plaintiffs and defense counsel, it is useful to see what he recommends for negotiating with parties one might find deeply distasteful. Second, and every bit as important, Mnookin provides a detailed look at three extremely difficult negotiations. That alone is worth the price of the book.