The Art Of Negotiating Intractable Conflicts

Guests

Robert Mnookin, professor at Harvard Law School and author of Bargaining with the Devil

The tensions between Israelis and Palestinians are one of many long-standing conflicts often described as intractable. Conflict negotiation experts employ various strategies to tackle big problems, ranging from divorce and property management to ethnic, religious and international conflict.

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LYNN NEARY, HOST:

This is TALK OF THE NATION. I'm Lynn Neary, in Washington. President Obama heads to Israel tonight, where, over the next few days, he will meet with Prime Minister Benjamin Netanyahu and with Palestinian leader Mahmoud Abbas. Opinion pages and blogs have been discussing his visit and what it could mean for Israelis and Palestinians and their longstanding conflict.

But today, we'd like to focus not on the politics of the Israeli and Palestinian conflict specifically, but on what it takes to negotiate an agreement in a seemingly intractable situation. What are the strategies for finding solutions to insolvable problems, from international conflicts to labor strikes to domestic problems like divorce? If you've ever been part of a negotiation process, tell us about a breakthrough moment and how you got there. Our number is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, the financial crisis in Cyprus and what it means for you. But first, negotiating intractable conflicts. Robert Mnookin is a professor of law at Harvard, where he directs the Program on Negotiation. He's also author of "Bargaining with the Devil: When to Negotiate and When to Fight." And he joins us now from the studios at Harvard. So good to have you with us. Welcome to TALK OF THE NATION.

ROBERT MNOOKIN: It's a pleasure to be here, Lynn.

NEARY: Now, you study and deal with conflict on a variety of levels, from large, international ones to smaller ones, like divorce. Are there characteristics that both share, both the large and the small?

MNOOKIN: Obviously, context matters, but in my view, there are similar issues. And, indeed, in terms of thinking about negotiation, there are some basic questions that can always be asked.

NEARY: And they are?

MNOOKIN: Well, in all negotiations, I think there's a need to manage what I call three tensions. One tension is what I call the tension between creating value and expanding the pie, and the other is the inevitable need to distribute or cut up the pie. In many negotiations, people manage this tension very well - very badly, rather.

They have their eye so much on what size slice am I going to get, that they forget that through negotiation, you can often do things that can expand the pie.

NEARY: So, as a negotiator, take us through the process a bit. First of all, what are you thinking about as you're heading into a room? I know that it's not just that moment that you're thinking about it, but what have you built - how have you built up to that moment when you're heading into a room with two or more parties that seem miles apart, like there's no way you're ever going to get these people to agree on anything? How do you, as a negotiator, get yourself ready for that, number one?

MNOOKIN: Well, one thing I usually think about is how well they're communicating with each other. When people are locked into an intractable conflict, normally, they communicate very badly with each other. They have a pretty easy time asserting what they want, what their needs are, what their claims are, but they're not particularly good at demonstrating an understanding of the other side's perspective.

So one thing that I can sometimes help parties do is better understand each other's story and help them demonstrate to the other side not that they agree with the story, but at least that they've really heard their point of view.

NEARY: How do you get people to begin to do that? Is there a technique you use? I mean, is it just - because if you just say it's just simply listening to each other, you know, it has to be more complex than that, doesn't it?

MNOOKIN: Well, we all know that we're all great at faking listening. That is, we sit with someone, and they say something, and they're nodding, they maintain eye contact, and we pretend we're listening. But, in fact, what we're listening is to something in our own head, which is often, well, what am I going to say in response? How am I going to rebut this?

Or I may be thinking about: What am I going to have for lunch later today? Or golly, what a funny-looking dress or tie this person's wearing. So one thing one can do is - as a mediator, for example, model good listening. And what I try to do is in meeting with - for example, in a dispute with two parties - demonstrate to each of them my willingness to really try to see the world from their perspective.

And having done that, I often ask the other side, if they're there, too - and often it's very useful for the two sides to be in the same room, of course - if they, in fact, can reflect back in a nonjudgmental way what they've heard.

NEARY: Now, is it different when you're dealing with a huge international situation? I mean, the example in the news this week, of course, is, you know, the Israelis and the Palestinians. That's a completely - I mean, is it different when you're dealing with that kind of situation than when you're dealing with, say, a domestic situation?

MNOOKIN: Of course it's different. I mean, and one difference is that the people who are doing the negotiation are what we sometimes call agents representing a larger group behind the table. For example, a national leader, if Benjamin Netanyahu is negotiating on behalf of the Israelis, he's not negotiating on his own behalf. He's negotiating on behalf of his government.

Similarly, Abu Mazen is negotiating or speaking on behalf of his people and the Palestinian Authority. And in any negotiation of any complexity, there is often an agent representing some group. A manager, for example, may be representing a corporation. A union leader may be representing a union. A corporate manager will be representing a corporation.

And a second tension - apart from the tension between creating value and claiming value - is the tension between the interests of this individual who's the agent, on the one hand, and those behind the table, whom he is presumably representing.

For example, political figures are deeply concerned about getting re-elected. Managers are concerned about their careers. Labor leaders want to also get re-elected. Lawyers, if they're representing somebody, are concerned about their standing in their law firm and getting paid. In other words, agents have interests of their own, and this obviously complicates negotiation.

NEARY: Yeah. How do you cut through that?

MNOOKIN: Well, I think one thing you have to do is help people understand that this is a tension that must be managed. And, indeed, focusing on the underlying interests of the principals involved - the Israeli people, the Palestinian people - is helpful. Focusing on the interests of union members is useful. And I think this is not to say that all agents are disloyal. It's just that one thing - whenever you hire an agent to negotiate on your behalf, what you have to be aware of is that the interests of that agent may not entirely coincide with your own.

NEARY: We are talking with Robert Mnookin of Harvard Law School, where he chairs the Program on Negotiation, about the art of negotiation and where you start when the divide seems insurmountable. If you've ever been part of a negotiation process, tell us about a breakthrough moment and how you got there. The number is 800-989-8255. And we're going to take a call from Joel, and Joel is calling from Maui, in Hawaii. Welcome to the program, Joel.

JOEL: Well, thank you for having me on. I appreciate it.

NEARY: Go ahead.

JOEL: Well, first of all, I'm familiar with Mr. - Professor Mnookin's work, and I have a lot of respect for it. And I had the pleasure and the honor of starting the first mediation program in Los Angeles in 1977, and ran it for four years. And I wrote a book on the subject called "The Tao of Negotiation." So I've asked to talk about a breakthrough moment.

First of all, the principal that I found very important is to keep everybody together, to not have this Henry Kissinger back-and-forth going from one capital to another, but to keep people in the same room and be knowledgeable, and in the presence of all sides, be equally confrontive in drawing them out.

And one moment that I mentioned to your call-screener was that we had a gang war in the Venice area in L.A., where we started this, and there had been deaths on both sides, and we were very close to Venice High School. And what we did was we - first of all, we had a program in which people would call in, and we did a rumor control. And then we got both sides to come into our storefront facility and check their guns at the door.

And once we knew that we actually had them both coming in at the same time, we knew it was all downhill from there. Just the fact that they were willing to sit down and talk about it, and we knew that we would come to some agreement because nobody - they had - each side had demonstrated their gravitas by whatever they had done.

NEARY: So you had to go out into the - it sounds like you're saying you had to go out into the community and talk them into coming into the negotiation to begin with, you're saying.

JOEL: Absolutely. Absolutely, yeah. And we did it by showing that we had the guts to do it, that we weren't afraid ourselves and that we could risk ourselves. And for some of us, like me, I mean, I had been in Vietnam, and I - and as a civilian, I was - I worked for the RAND Corporation, and had been there with Daniel Ellsberg. So, I mean, we - some of us were just simply not afraid for ourselves.

NEARY: All right. Well Joel, thank you very much. That's a really interesting story. I appreciate your call. And I wanted to follow up on one thing Joel said, too, about keeping them in the room, Professor Mnookin, the idea that you get them to the room, and then you keep them there.

MNOOKIN: Well, first of all, deadlines are often useful. And I also agree that it's often extraordinarily valuable, particularly where it's a conflict between individuals or among family members, to have them in the room together so they can literally hear each other. And I, in those contexts, do prefer getting them in the room and having them try to work together to see if you can't come up with a solution.

There are other disputes, though, that don't lend themselves as well to that. I mean, for example, in a conflict, for example, the conflict between the Israelis and the Palestinians, you may have representatives in the room, but you're never going to have all the peoples in the room. And one of the big challenges in conflicts like this is not who's in the room, but what's going on behind the table within each side.

NEARY: All right, let's keep that thought, and let's continue that discussion when we come back from a short break. We're talking with longtime negotiator Robert Mnookin, and it's about where you start when the divide seems insurmountable in a negotiation. If you've ever been part of a negotiation process, tell us about a breakthrough moment: 800-989-8255. I'm Lynn Neary, and this is TALK OF THE NATION, from NPR News.

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NEARY: This is TALK OF THE NATION, from NPR News. I'm Lynn Neary. We're talking about the art of negotiation, particularly when it comes to problems that seem intractable, that for years, in some case, defy solution. If you've ever been part of a negotiation process, tell us about a breakthrough moment and how you got there. Our number is 800-989-8255. Our address is talk@npr.org. And you can also join the conversation at our website. Go to npr.org and click on TALK OF THE NATION.

And our guest is Robert Mnookin, professor of law at Harvard Law School, where he chairs the Program on Negotiation. And just before the break, Professor Mnookin, you were talking about the difference between negotiating a situation where you're dealing with individuals versus people who are representing huge constituencies.

MNOOKIN: Exactly. And there, part of the problem is: How do you help those who are representing others, more effectively represent them in a problem-solving way? Behind the table, there may be some people who don't want you to be negotiating at all as the leader. For example, within Benjamin Netanyahu's Cabinet, there are several leaders who expressly oppose any kind of two-state resolution of the conflict - two states for two peoples. Others in his Cabinet support it.

Similarly, among Palestinians, as you know, Hamas is hardly prepared to accept Israel as a Jewish state at all. Indeed, they don't accept the legitimacy of the state of Israel and disagree not with the '67 borders, but don't want Israel to exist. How does a Palestinian leader effectively represent all those diverse interests?

I think a key thing is if you help leaders on one side be a little more empathetic about the behind-the-table constraints on the other side, they can often do things that are constructive for them. I mean, I wish, for example, that the Israeli government would more often think about what might be done to strengthen the hand of Palestinian moderates who might well want their leaders to negotiate.

And similarly, I think Palestinian leaders can think about: What might we do that could lessen the tensions behind the table among Israeli Jews?

NEARY: So as a negotiator, you kind of have to come in with your own agenda, then, too.

MNOOKIN: I think what you have to do is not come in with a solution that you're going to try to sell, but instead come in eager to learn what is in the long-run interests of all concerned and help generate a process where you can come up with reasonably creative ways of dealing with those issues, of ways in which parties might be able to communicate more effectively with each other.

NEARY: All right, let's take a call now from Samantha, and she is calling from Port Orchard, Port Orchard, Washington. Hi, Samantha.

SAMANTHA: Hi, how are you?

NEARY: I'm good. Go ahead.

SAMANTHA: Well, I just have an educational background in negotiations. I studied negotiations at a master's level at the Monterrey Institute of International Studies. And I remember consistently being reminded that one way to be able to take a lot of the higher-level emotions off the table is to come up with a document and put things down, put both sides down on paper so that you're quibbling over amounts and timeframes rather than rights and history and religions and things. And it just takes the rhetoric down a level to where you're actually talking about things that are manageable, rather than things that can't be done anything about, like the past.

And I was just wondering if the speaker could comment on the efficacy of this. And I understand that, you know, international negotiations, really, the background and the history is so important. But does the use of actually putting it down in document form take it down to a less emotional and more manageable level?

NEARY: Professor Mnookin?

MNOOKIN: Well, I think you've said two things that are extremely valuable. The first is, often as a mediator, I try to be forward-looking rather than looking back. If you try to get parties to agree about what happened in the past and who was how much at fault, it can be extraordinarily difficult, because usually, they have very partisan perspectives.

I mean, for example, the Israelis and the Palestinians, if you ask them about what happened in 1947 and '48, for Israeli Jews, it was the time when they became a country and created an independent nation. And for Palestinians, it's considered the great tragedy, the Nakba. So I think looking back and having them try to agree on the narrative is very difficult.

On the other hand, looking forward and saying, what can be done now to improve life for ordinary Palestinians and for ordinary Israelis - I mean, in terms of reducing the threat of terror on the one hand, and on the other hand, improving the economic well-being and the day-to-day life for Palestinians, there are lots of things that could be done.

And I think, once again, creating a document where you try to put down on paper what those possibilities are is exceedingly valuable. And I think that - needless to say, ultimately, if you're going to reach some kind of agreement, you want to be able to put down what has been agreed to.

NEARY: All right. Thanks so much for your call, Samantha.

SAMANTHA: Sure, thank you.

NEARY: All right. Good talking to you. And we're going to take a call now from Jodi(ph), who is calling from - hold on a second, (unintelligible) - calling from Sacramento, California. Jodi, you there?

JODI: Yes, hi. Yeah, I was in a two-year lawsuit with a management company as a below-income disabled veteran who was - spoke up to the manager and was assaulted, and they tried to evict me. So to keep the eviction off, at that point, I wanted to move, but I couldn't move, because once they did the eviction notice, I had to countersue them, and it took over two years. We went through several judges. This was not in Sacramento County, but it was in California.

Finally, we - and we wanted - my side, there was a few other people, we wanted mediation from the very beginning. But we actually had to wait for two years going through the court to get to the mediation. And then we finally got to a judge, who was retired.

And the breaking point was when they finally released the eviction, because the thing I was holding was basically the assault, because we both had witnesses on both sides. And they had spent so much money in lawyers protecting their management company, they finally just offered to release the eviction, and I signed the paperwork.

NEARY: So once they said they wouldn't evict you, you were - did that opened you up to looking at things differently?

JODI: Yeah, I wanted to move. I had wanted to move even before the assault. I actually was looking around to move. But after they did the paperwork for the eviction, I couldn't move with that on my credit. So I had to fight with them for two years get the eviction notice cleared. And because of the assault, I think maybe they thought that I was going to pursue more lawsuits. But really, I really wanted to move.

NEARY: You just wanted to get out. That's interesting. Thanks for your call, Jodi.

JODI: Yeah, thank you.

NEARY: So Professor Mnookin, there's sort of an example of even in a personal case like that, a domestic case like that, there's - somebody has something they want that will change everything altogether, and...

MNOOKIN: Well, that's a wonderful example of a case where the tragedy is that there wasn't a mediator earlier in the process to facilitate negotiation. Because what any mediator worth his salt would have done is find out from each side: What do you care about? Looking forward, what is in your interest? And what the woman who called in would have said, well, what's in my interest is to preserve my credit, to be treated with respect, not to be thrown out on the street, probably to have time to find a new place to live.

And yet if you sue to evict me, I'm going to fight back by asking for damages with respect to assault, the assault, although her underlying interest was really not so much to collect money. With respect to the landlord, their primary interest was probably defensive. They were worried that they might get tagged with a big torts case, and, in fact, had they known that as the tenant would have moved out voluntarily if she had been treated with a little more respect, I mean, what a better example of a case where if they could have, with a third party, had a conversation earlier, you could have saved two years of anguish and no doubt lots of legal fees.

NEARY: Yeah. All right, let's take another call, from Chip, and Chip is calling from Indiana. Hi, Chip.

CHIP: Hello.

NEARY: Hi. Go ahead.

CHIP: I was working with a group that was observing negotiations with the - in Sri Lanka between the Tamil Tigers and the government. And one of the things that had happened over 20 years of war when there was a peace negotiation, the government would set forth a proposal, the Tigers would reject it but never counter offer. And, pretty much, the world thought that the Tigers were arrogant. But as we sort of deal with some of the people that were a part of that, I think what we felt was that there's an asymmetrical situation where you have these guys who were pretty much had to dropout of any sort of educational situation because of the conflict, who were sitting across the table from, you know, the brightest constitutional lawyers that the government had available. And that they felt very uncomfortable about setting forth a proposal.

We try to get organizations to do a training for the Tigers, but because of a variety of things, one of which being that most people thought that the Tigers would never go for it. They didn't. So finally, we put together a training ourselves. They wrote a counter proposal. They presented it. But I think because of the asymmetrical situation, a variety of things, sort of, went wrong. But I feel that that's an important element in sort of a negotiation situation.

NEARY: All right. Thanks for your call, Chip. And Professor Mnookin, I wonder if you can respond to that.

MNOOKIN: Well, I think that's an entirely valid point. Particularly, for example, in disputes between a community group on the one hand, and a corporation on the other. Where it may be over a zoning issue, a land use issue, something like this, he gave an example that involved a very serious ethnic conflict in Sri Lanka.

There are, too, often be an asymmetry in terms of experience at the negotiation process and the ability of each side to gather together information, try to figure out what is in their long-run interest, generating options, et cetera. And I think often in those instances what you have to do in terms of designing a negotiation process is to do just what that caller attempted to do, and that is develop or improve the capacity of each side to more effectively speak for their own - the effective representatives for their own interests. And this is a delicate task, but a very important one.

NEARY: We're talking with Robert Mnookin about the art of negotiation. He's the author of the book, " Bargaining with the Devil: When to Negotiate, When to Fight." And you're listening to TALK OF THE NATION from NPR News. And let's go to another call. We're going to go to Harry. He's calling from Columbia, South Carolina. Hi, Harry.

HARRY: Hi there. How are you all doing?

NEARY: Good. Go ahead.

HARRY: Yeah. I was a part of the Occupy Austin Movement in Austin, Texas about two years ago. And as you may remember, the Occupy Movement was a good number of people who are just trying to get on TV, if you will. We all wanted some sort of (unintelligible) to punctuate, you know, this - how corporations are unfair to us and we're the 99 percent and what have you.

So there was a point at which somebody had sent up a tent at city hall in Austin and that person was no longer there. But - so the police were going to take down this one tent that everybody saw as, sort of, a personification and embodiment of, you know, our protest. And so the police were about to take this tent down and there was this mob of people on one side with signs and, you know, yelling things, hateful things towards the police. And on the other side, there were all of these police who were, you know, the way I thought, there were just people who were, you know, at their work trying to deal with this confusing situation.

And so I being a pretty prominent member, I stood up and talked in front of people. Everybody kind of knew me. I got in between them and said, OK. The person here who owns the tent, and they weren't, so I said, well, think of it this way, you know, somebody left something on your lawn and you don't have - you don't know whose it is. So they're just going to try and move it so that it's not getting in the way of, you know, our activities or it's not allowed to be here. So I try to bring in the different prospective of these are just people to who are working for us.

You know, there are officials that we pay through taxes to help us and keep our lands clean and safe. And everybody's, sort of, calmed down and went disabled to try and take that prospective. So I think it took sort of an insider view of, hey, I'm part of the mob too, but I don't think that we should be as mob-like. And it really - people think that have a little bit more consciousness, if you will, of the police after that. They weren't as just, you know, they are the bad guys and we are the good guys, and there's more of a gradient scale. Everyone could see each others' prospective.

NEARY: Well, thanks for calling, Harry. It's an interesting story. I'm going to have Professor Mnookin sort of comment on the tactic that you took there. Thanks for your call.

MNOOKIN: Well, that a very interesting example of how someone was prepared to assume a leadership role in which he or she helps those who are on the same side as he is, better understand the perspective of the others and make better choices about what to do. And I think the role of leadership in complex negotiations is just indispensable. Because often, what you need to do, is not only negotiate behind the table - excuse me - not only negotiate across the table with the quote, "adversary," but negotiate behind the table to build a constituency for what can be a constructive resolution. I mean, Nelson Mandela...

NEARY: You ever just throw up your hands? You ever just say I can't do this because nothing's going to happen here?

MNOOKIN: Well, look, one is not always successful, but I think most first class mediators don't easily give up. They keep trying. And that's not to say that all conflicts can be resolved through negotiations. That's nonsense. It's not the case. But on the other hand, what you often do is keep trying and keep trying to keep the spotlight on what party's underlying long run interests are and have them think about in terms of those interests.

NEARY: All right. Well, thanks so much for being with us today, Professor Mnookin.

MNOOKIN: It's my great pleasure.

NEARY: Robert Mnookin is the chair of the program on negotiation at Harvard and author of "Bargaining With the Devil: When to Negotiate and When to Fight." And coming up, NPR's Marilyn Geewax tells us why a run on banks in the tiny country of Cyprus could ripple all the way across the Atlantic. Stay with us. I'm Lynn Neary. It's TALK OF THE NATION from NPR News.

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