Robert Harris Mnookin

Samuel Williston Professor of Law

Director, Harvard Negotiation Research Project

Hauser 416

617-495-9201

Assistant: Caryn M. Shelton-May / 617-495-9200

Biography

Robert H. Mnookin is the Samuel Williston Professor of Law at Harvard Law School, the Chair of the Program on Negotiation at Harvard Law School, and the Director of the Harvard Negotiation Research Project. A leading scholar in the field of conflict resolution, Professor Mnookin has applied his interdisciplinary approach to negotiation and conflict resolution to a remarkable range of problems; both public and private.

A renowned teacher and lecturer, Professor Mnookin has taught numerous workshops for corporations, governmental agencies and law firms throughout the world and trained many executives and professionals in negotiation and mediation skills. On behalf of the World Intellectual Property Organization in Geneva, he designed and has taught annual workshops for intellectual property professionals. Professor Mnookin has served as a consultant to governments, international agencies, major corporations and law firms. As a neutral arbitrator or mediator, he has resolved numerous complex commercial disputes.

Professor Mnookin has written or edited ten books and numerous scholarly articles. In his most recent book, Bargaining with the Devil: When to Negotiate, When to Fight, Mnookin explores the challenge of making such critical decisions. Using eight conflicts drawn from history and his own professional experience, he offers a framework that applies equally to international conflicts and everyday life.

Areas of Interest

Robert H. Mnookin, Child Custody Revisited, 77 Law & Contemp. Probs. 249 (2014).
Categories:
Family Law
,
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Children's Law & Welfare
,
Domestic Relations
Type: Article
Abstract
This essay represents Professor Mnookin's reflections on the organization of a symposium and accompanying issue of "Law and Contemporary Problems" around his 1975 article "Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy." His observations focus on two questions: Are the article’s two core themes—relating to the indeterminacy of the best-interests standard and differentiating child protection from private dispute resolution—still relevant? To what extent have changes in social norms, technology, and legal doctrine made my analysis unresponsive to contemporary challenges for custody law and policy?
Robert H. Mnookin & William Marra, Rethinking the Tension Between Peace and Justice: The International Criminal Prosecutor as Diplomat, 18 Harv. Negotiation L. Rev. 145 (2013).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Military, War, & Peace
,
International Humanitarian Law
Type: Article
Abstract
Imagine you are the Prosecutor of the International Criminal Court. The year is 2014, and the war-weary Afghani people have struck a tentative deal to end their civil war. The deal contemplates amnesty for Mullah Omar and his deputies, many of whom have likely committed war crimes or crimes against humanity. As Prosecutor, you face a dilemma: Should you quietly accept the deal — or should you prosecute the Taliban, even though a prosecution risks jeopardizing the peace? Using that hypothetical as a frame, this essay explores how the ICC Prosecutor ought to balance competing considerations of peace and justice when deciding whether to initiate a criminal investigation or prosecution. The Prosecutor’s official policy position is that he cannot consider the interests of peace when deciding whether to prosecute suspected criminals. In other words, his decision whether to go after Mullah Omar must be made without considering how his acts will affect ongoing peace processes. This essay counters that it is both prudent and inevitable for the Prosecutor to consider the interests of peace. In a policy paper, the Prosecutor has ruled out the most natural method for considering the interests of peace, namely the Rome Statute’s Article 53 “Interests of Justice” provision. But there remain two other ways for the Prosecutor to take into account the interests of peace: first, through careful use of timing when initiating investigations and prosecutions; and second, through a process of proactive complementarity. This essay explains that on balance, delay and complementary are actually better vehicles to address the tension between peace and justice than Article 53’s Interests of Justice provision. The essay concludes by providing a set of practical guidelines the Prosecutor should follow when deciding when to prosecute, and when to defer. While the Prosecutor should not explicitly bargain with offenders or acknowledge the validity of blanket amnesty programs, he should delay investigations and employ proactive complementary when an investigation or prosecution unduly risks jeopardizing peace prospects.
Robert H. Mnookin, Bargaining with the Devil: When to Negotiate, When to Fight (Simon & Schuster 2010).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
Type: Book
Abstract
Should you bargain with the Devil? In an age of terror, our national leaders face this sort of question every day. Should we negotiate with the Taliban? Iran? North Korea? What about terrorist groups holding hostages? In private disputes, you may face devils of your own. A business partner has betrayed you and now wants to negotiate a better deal. Your marriage is ending and your spouse is making extortionist demands. A business competitor has stolen your intellectual property. Your sister is fighting you over an inheritance. You are furious. Your gut tells you to fight it out in court. But when facing a devil—anyone you perceive as a harmful adversary—it may make more sense to negotiate rather than fight, says Robert Mnookin, the internationally renowned leader in the art of negotiation. How do you decide?
James K. Sebenius, R. Nicholas Burns, Robert H. Mnookin & Laurence A. Green, Henry Kissinger: Negotiating Black Majority Rule in Southern Africa (Harvard PON Working Paper, Harvard Bus. Sch. NOM Unit Working Paper No. 17-051, Dec. 9, 2016).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Negotiation & Alternative Dispute Resolution
,
Foreign Relations
,
Foreign Law
Type: Other
Abstract
In 1976, United States Secretary of State Henry A. Kissinger conducted a series of intricate, multiparty negotiations in Southern Africa to persuade white Rhodesian leader Ian Smith to accede to black majority rule. Conducted near the end of President Gerald Ford’s term in office, against substantial U.S. domestic opposition, Kissinger’s efforts culminated in Smith’s public announcement that he would accept majority rule within two years. This set the stage for the later Lancaster House negotiations which resulted in the actual transition to black majority rule. The account in this working paper carefully describes — but does not analyze nor draw lessons from — these challenging negotiations. Forthcoming papers will provide analysis and derive general insights from Kissinger’s negotiations to end white minority rule in Rhodesia.
Penelope Andrews, Richard Goldstone, Carrie Menkel-Meadow, Robert Mnookin, Andrea Schneider & Jean R. Sternlight, Making Peace With Your Enemy: Nelson Mandela and His Contributions To Conflict Resolution, 16 Nev. L.J. 281 (2015).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Biography & Tribute
Type: Article
Abstract
Panel discussion on how Nelson Mandela contributed to the art and practice of conflict resolution in honor of the tenth anniversary of the Saltman Center for Conflict Resolution at the UNLV William S. Boyd School of Law.
Robert H. Mnookin, Ehud Eiran & Shula Gilad, Is Unilateralism Always Bad? Negotiation Lessons from Israel's "Unilateral" Gaza Withdrawal, 30 Negotiation J. 131 (2014).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Negotiation & Alternative Dispute Resolution
,
Dispute Resolution
,
Executive Office
,
Foreign Relations
Type: Article
Abstract
Using the 2005 unilateral Israeli withdrawal from Gaza as a case study, this article exposes an apparent paradox: circumstances may exist in which an outcome that serves the interests of parties to a conflict cannot be achieved through bilateral negotiation but can be achieved by unilateral action. Although the withdrawal was seen at the time as serving the interests of both the Israeli government and the Palestinians, we argue that the same result could not have been achieved through bilateral negotiations. “Behind-the-table” internal conflicts on each side would have made it impossible for the leaders to agree on the scope of these negotiations. Prime Minister Ariel Sharon's success in implementing his Gaza withdrawal was attributable in significant measure to his ability to maintain ambiguity about his long-run plans for the West Bank. Only by focusing attention on Gaza was he able to build the necessary coalition to implement the controversial move. The Palestinian leaders, on the other hand, could never have agreed to come to the table to negotiate about Gaza alone — they would have insisted that the scope of any negotiations address a broad range of final status issues. In this article, we identify some of the lessons that the Gaza example teaches regarding the utility and limits of unilateralism as well as the benefits and potential costs of employing ambiguity as a strategy to help accomplish a controversial move. Finally, we also explore the aftermath of the withdrawal and its many missed opportunities for improving the outcome. We suggest that, even when acting unilaterally, leaders should carefully consider the probable impact of their actions on the internal conflicts of their adversaries.
Robert H. Mnookin, Special Section: Celebrating Roger Fisher's Legacy. Introduction: A Purposeful Life Well Lived, 29 Negotiation J. 129 (2013).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Article
Robert H. Mnookin & Alain Laurent Verbeke, Persistent Nonviolent Conflict with No Reconciliation: The Flemish and Walloons in Belgium, 72 Law & Contemp. Probs. 151 (2009).
Categories:
International, Foreign & Comparative Law
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Dispute Resolution
,
Foreign Relations
Type: Article
Abstract
Mnookin and Verbeke describe the nonviolent but very serious conflict in Belgium between the Flemish (Dutch) of the North and the Walloons (French) of the South. The Flemish economy is more prosperous than the Walloon economy, and the Flemish constitute a majority of the Belgian population. Nevertheless, the Walloons enjoy a financial subsidy from the Flemish and share equally in the political power of the nation due to antimajoritarian restrictions built into the government structure. Even though significant and persistent, this conflict remains nonviolent due to several factors, including largely separate geography, language and social structure; a low-stakes conflict; relatively small wealth disparities; a federal system largely enabling separate political systems; and a pragmatic tradition. Mnookin and Verbeke argue that the disputants can continue to coexist with a civilized separation short of divorce. They further point out that the very factors that help keep this conflict nonviolent also serve to provide little incentive to work toward a more cooperative relationship.
Robert H. Mnookin, Ethnic Conflicts: Flemings and Walloons, Palestinians and Israelis, 136 Daedalus, no.1, 2007, at 103.
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Dispute Resolution
,
Foreign Relations
Type: Article
Abstract
This article discusses Professor Mnookin's reflections, based on his personal observations, on the similarities between the Flemish-Walloon conflict in Belgium and the Israeli-Palestinian dispute.
Robert H. Mnookin, Ehud Eiran & Sreemati Mitter, Barriers to Progress at the Negotiation Table: Internal Conflicts Among Israelis and Among Palestinians, 6 Nev. L.J. 299 (2006).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Foreign Relations
Type: Article
Abstract
The authors argue in this paper that a conspicuous and as of yet unachievable Israeli-Palestinian peace deal, while serving the interests of most Israelis and most Palestinians, creates profound conflicts within each community. These conflicts help explain why the Oslo Principles were so vague, why there has been a pattern within both communities of deferring decisions on these issues, and why, although there is substantial evidence that moderates on both sides might be able to make this deal, it has never been accomplished.
Gabriella Blum & Robert H. Mnookin, When Not to Negotiate, in The Negotiator's Fieldbook 101 (Andrea K. Schneider & Christopher Honeyman eds., Am. B. Ass'n 2006).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
Type: Book
Abstract
This book pulls together the relevant ideas on negotiation from law, psychology, business, economics, cultural studies and a dozen other fields to provide a context for successful negotiation. The chapter by Mnookin and Blum provides a useful theoretical framework to demonstrate what a party should consider before deciding whether or not to enter into negotiations.
Lawrence Susskind, Robert H. Mnookin, Lukasz Rozdeiczer & Boyd Fuller, What We Have Learned About Teaching Multiparty Negotiation, 21 Negotiation J. 395 (2005).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Negotiation & Alternative Dispute Resolution
,
Legal Education
Type: Article
Robert H. Mnookin, Afterword to the Conference Report: Resolving the Behind-the-Table Conflict, 21 Negotiation J. 259 (2005).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Dispute Resolution
,
Foreign Relations
Type: Article
Robert H. Mnookin, The Internal Israeli Conflict: The past, present, and future of the Jewish West Bank and Gaza settlements, 21 Negotiation J. 165 (2005).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Dispute Resolution
,
Foreign Relations
Type: Article
Robert H. Mnookin & Kelly D. Weisberg, Child, Family, and State: Problems and Materials on Children and the Law (Aspen L. & Bus. 5th ed. 2005).
Categories:
Family Law
Sub-Categories:
Children's Law & Welfare
,
Domestic Relations
Type: Book
Abstract
A pioneering casebook, Child, Family, and State was one of the first books to explore the full range of legal questions relating to children -- not just custody issues, but also the economic relationship within a family, abuse and neglect, ...
Robert H. Mnookin & Frank E.A. Sander, Foreword, 10 Harv. Negot. L. Rev. 1 (2005).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Negotiation & Alternative Dispute Resolution
,
Biography & Tribute
,
Legal Education
Type: Article
Robert H. Mnookin, Strategic Barriers to Dispute Resolution: A Comparison of Bilateral and Multilateral Negotiations, 159 J. Inst. & Theoretical Econ. 199 (2003).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Law & Economics
Type: Article
Abstract
This paper compares strategic barriers to the resolution of conflict - those that may arise because rational self-interested actors try to maximize individual returns - in two party and multi-party negotiations. It suggests that the Pareto-criterion may not provide an appropriate standard to evaluate efficiency in multiparty bargaining because a requirement of unanimity may create potential holdout problems that pose severe strategic barriers. While a variety of procedural rules may permit decision-making without unanimity, the paper briefly explores the application of an unusual procedural rule - the "sufficient consensus" standard - that was employed in the multiparty "constitutional" negotiations in South Africa and in Northern Ireland.
Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, Beyond Winning: Negotiating To Create Value in Deals and Disputes (Harvard Univ. Press 2000).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
Type: Book
Abstract
Conflict is inevitable, in both deals and disputes. Yet when clients call in the lawyers to haggle over who gets how much of the pie, traditional hard-bargaining tactics can lead to ruin. Too often, deals blow up, cases don’t settle, relationships fall apart, justice is delayed. Beyond Winning charts a way out of our current crisis of confidence in the legal system. It offers a fresh look at negotiation, aimed at helping lawyers turn disputes into deals, and deals into better deals, through practical, tough-minded problem-solving techniques. In this step-by-step guide to conflict resolution, the authors describe the many obstacles that can derail a legal negotiation, both behind the bargaining table with one’s own client and across the table with the other side. They offer clear, candid advice about ways lawyers can search for beneficial trades, enlarge the scope of interests, improve communication, minimize transaction costs, and leave both sides better off than before. But lawyers cannot do the job alone. People who hire lawyers must help change the game from conflict to collaboration. The entrepreneur structuring a joint venture, the plaintiff embroiled in a civil suit, the CEO negotiating an employment contract, the real estate developer concerned with environmental hazards, the parent considering a custody battle―clients who understand the pressures and incentives a lawyer faces can work more effectively within the legal system to promote their own best interests. Attorneys exhausted by the trench warfare of cases that drag on for years will find here a positive, proven approach to revitalizing their profession.
Frank E.A. Sander & Robert H. Mnookin, A Worthy Challenge: The Teaching of Problem Solving in Law Schools, Disp. Resol. Mag., Summer 2000, at 21.
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Clinical Legal Education
Type: Article
Negotiating on Behalf of Others: Advice to Lawyers, Business Executives, Sports Agents, Diplomats, Politicians, and Everybody Else (Robert H. Mnookin & Lawrence E. Susskind eds., Sage Pub. 1999).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
Type: Book
Abstract
Most negotiation theory assumes direct interaction between two principals. Negotiating on Behalf of Others challenges this view and suggests that because most people negotiate on behalf of others, a radical shift is required in the way we think about (and conduct) negotiations. It offers a framework for understanding the complexity and effects of negotiating on behalf of others and explores how current negotiation theory can be modified to account for negotiation agents. Negotiation agents are broadly defined to include legislators, diplomats, salespersons, sports agents, attorneys and committee chairs - anyone who represents others in a negotiation. (From the Publisher)
Robert H. Mnookin & Robert Wilson, A Model of Efficient Discovery, 25 Games & Econ. Behav. 219 (1998).
Categories:
Civil Practice & Procedure
Sub-Categories:
Litigation & Settlement
,
Dispute Resolution
Type: Article
Abstract
We construct a model of costly pretrial discovery (represented as learning the drift rate of a diffusion process by observing its path) and settlement negotiations (analyzed as a mechanism design problem) in which the gains from settling are the avoided costs of a trial whose outcome is correlated with their private information. We show that for this particular model, the parties' expected gains from a joint plan of discovery preceding the settlement negotiations are unaffected by their privately known parameters; hence there is no intrinsic impediment to initial agreement on an efficient plan of discovery.
Rachel Croson & Robert H. Mnookin, Does Disputing Through Agents Enhance Cooperation? Experimental Evidence, 26 J. Legal Stud. 331 (1997).
Categories:
Civil Practice & Procedure
Sub-Categories:
Litigation & Settlement
,
Dispute Resolution
Type: Article
Robert H. Mnookin, Scott R. Peppet, Andrew S. Tulumello, The Tension Between Empathy and Assertiveness, 12 Negotiation J. 217 (1996).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
Type: Article
Abstract
This article explores two central dimensions of negotiation behaviour: empathy and assertiveness. Empathy refers to the process by which negotiators demonstrate an understanding of their counterpart Assertiveness refers to the process by which a negotiator articulates and advocates her interests Although many people experience Empathy to be incompatible with assertion and vice-versa, the authors suggest that the most effective negotiators develop expertise along both dimensions.
Barriers to Conflict Resolution (Kenneth J. Arrow, Robert H. Mnookin & Robert Wilson eds., 1995).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
Type: Book
Abstract
In family life, schools, law, the business world and domestic and international affairs, it is all too common for disputes to fester unresolved even when the parties are committed to a negotiated settlement. In this book, members and associates of the Stanford Center on Conflict and Negotiation address the complex issues that protract disputes and turn potentially successful negotiations into conflicts that leave everyone worse off. Drawing on disciplines such as economics, cognitive psychology, statistics and game theory, the book considers the barriers to successful negotiation in such areas as civil litigation, family law, arms control, union/managerial disputes, environmental treaty-making and politics. It examines issues such as whether it pays for parties to a dispute to co-operate and how third-party negotiators can further resolutions.
Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation Between Lawyers in Litigation, 94 Colum. L. Rev. 509 (1994).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Litigation & Settlement
Type: Article
H. Elizabeth Peters, Laura M. Argys, Eleanor E. Maccoby & Robert H. Mnookin, Enforcing Divorce Settlements: Evidence from child support compliance and award modifications, 30 Demography 719 (1993).
Categories:
Family Law
Sub-Categories:
Domestic Relations
Type: Article
Abstract
This paper uses an implicit contracting framework to understand the dynamic nature of divorce settlements and to analyze the determinants of noncompliance with child support awards. In addition to the standard economic variables that affect the noncustodial parent’s (NCP’s) ability to pay child support, our approach focuses on factors that may affect the NCP’s desire to pay, such as the ongoing relationship between the two parents and between the NCP and the children. We also examine the “state-contingent” nature of child support payments and explore the factors that lead to modifications in child support agreements. Using a longitudinal data set collected by the Stanford Child Custody Project, the empirical analysis provides documentation that compliance by noncustodial fathers can vary substantially from month to month. In addition, we find that even within a short period after divorce, a substantial minority of parents agree to make informal modifications to their divorce settlement in response to changes in economic circumstances and in custodial arrangements.
Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 Ohio St. J. on Disp. Resol. 235 (1993).
Categories:
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
Type: Article
Abstract
This article discusses four barriers to the success of negotiations: (1) strategic; (2) principle/agent; (3) cognitive; and (4) reactive devaluation. It also suggests ways in which neutral third parties might help overcome each of these barriers. The purpose of the article is to to show that the concept of barriers provides a useful and necessary interdisciplinary vantage point for exploring why negotiations sometimes fail.
Eleanor E. Maccoby & Robert H. Mnookin, Dividing The Child: Social and Legal Dilemmas of Custody (Harv. Univ. Press 1992).
Categories:
Family Law
Sub-Categories:
Children's Law & Welfare
,
Domestic Relations
Type: Book
Abstract
Questions about how children fare in divided families have become as perplexing and urgent as they are common. In this landmark work on custody arrangements, the developmental psychologist Eleanor Maccoby and the legal scholar Robert Mnookin examine the social and legal realities of how divorcing parents make arrangements for their children.
Robert H. Mnookin, In the Interest of Children: Advocacy, Law Reform, and Public Policy (W.H. Freeman & Co. 1985).
Categories:
Family Law
Sub-Categories:
Children's Law & Welfare
Type: Book
Robert H. Mnookin, The Israeli Palestinian Conflict: Is There a Zone of Possible Agreement (‘ZOPA’)?, Feb. 4, 2015.
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Foreign Relations
Type: Other
Abstract
Is a negotiated resolution of the Israeli Palestinian conflict possible? Can the parties fashion a comprehensive permanent status agreement at the bargaining table that puts an end to the dispute? To put the question in the jargon of negotiation theory: is there a Zone of Possible Agreement, or “ZOPA”? The article seeks to determine whether there is a ZOPA in regards to the Israeli-Palestinian conflict, and if so, the manner in which it can be emphasized and utilized. The first part uses a simple example to define ZOPA, along with other basic negotiation terms. The second part refers to the feasibility of a ZOPA in the Israeli-Palestinian conflict, and the final section identifies the barriers to an agreement.

Current Courses

Course Catalog View

Hauser 416

617-495-9201

Assistant: Caryn M. Shelton-May / 617-495-9200