Faculty Bibliography
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Robert Mnookin, The Jewish American Paradox: Embracing Choice in a Changing World (PublicAffairs 2018).
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Jews in America are in a period of unprecedented status and impact, but for many their identity as Jews--religiously, historically, culturally--is increasingly complicated. Many are becoming Jews without Judaism. It appears success and acceptance will accomplish what even the most virulent anti-Semitism never could---if not the disappearance of Jews themselves, the undermining of what it means to be Jewish. In this thoughtful, personal, deeply-reasoned book, Robert Mnookin explores the conundrums of Jewish identity, faith and community in America by delving deep into Jewish history, law, and custom. He talks to rabbis, scholars, and other Jews of many perspectives to explore the head, heart, and heritage of Judaism and confronts key challenges in the Jewish debate from the issue of intermarriage to the matter of Israeli policies. Mnookin shares provocative stories of the ways American Jews have forged (or disavowed) their Jewish identity over the past half-century, including his own to answer the standing question: How can Jews who have different values, perspectives, and relationships with their faith, keep the community open, vibrant, and thriving?
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James K. Sebenius, R. Nicholas Burns & Robert H. Mnookin, Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level (2018).
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"In this groundbreaking, definitive guide to the art of negotiation, three Harvard professors offer a comprehensive examination of one of the most successful dealmakers of all time, Henry Kissinger, and some of his most impressive achievements, including the Paris Peace Accords for which he won the 1973 Nobel Peace Prize. Political leaders, diplomats, and business executives around the world—including every President from John F. Kennedy to Donald J. Trump—have sought the counsel of Henry Kissinger, a brilliant diplomat and political scientist whose unprecedented achievements as a negotiator have been universally acknowledged. Now, Kissinger the Negotiator provides a groundbreaking analysis of Kissinger’s overall approach to making deals and his skill in resolving conflicts—expertise that holds powerful and enduring lessons. Based on in-depth interviews with Kissinger himself about some of his most difficult negotiations and an extensive study of his writings, James K. Sebenius of Harvard Business School, R. Nicholas Burns of the Kennedy School of Government, and Robert H. Mnookin of Harvard Law School crystallize the key elements of the former Secretary of State’s approach. Taut and instructive, Kissinger the Negotiator mines the long and fruitful career of this elder statesman and shows how his strategies not only apply to contemporary diplomatic challenges but also to other realms of negotiation, including business, public policy, and law. Essential reading for current and future leaders, Kissinger the Negotiator is an invaluable guide to reaching agreements." -- Harper Collins
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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.
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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.
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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.
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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.
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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?
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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.
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Robert H. Mnookin, Pieter-Augustijn Van Malleghem & Alain-Laurent Verbeke, Opinion, Belgium's Loveless Marriage, Wall St. J., Jan. 6, 2012.
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There will be no divorce, for now. But the latest 'reforms' don't correct the basic political dysfunctions of a country so divided.
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Robert H. Mnookin, Israel's Deals With the Devils, Wall St. J., Oct. 17, 2011, at A17.
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In a lopsided prisoner exchange, the Netanyahu government agreed to release about 1,000 Palestinian prisoners in exchange for a single life: that of Gilad Shalit, an Israeli corporal kidnapped by Hamas in a cross-border raid in 2006 and held hostage in Gaza. There is a long line of psychological research showing that, in making decisions, human beings will incur far greater costs to save one identifiable being from immediate peril than to enact safety measures that might save many more statistical lives.
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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?
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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.
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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.
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In this article we apply some basic principles of negotiation theory, such as sources of value creation, the three tensions, the importance of process approach, to the Belgian institutional and political crisis.
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In dit artikel bekijken de auteurs hoe de Belgische politieke impasse anno 2007 kan opgelost worden vanuit de negotiatietheorie. In this article a solution for the Belgian political problem anno 2007 is suggested via the theory of negotiation.
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In this Op Ed we comment on how the debate following the TV show at RTBF on Bye Bye Belgium illustrates the deathness on both sides of the language divide. People argue from within their position without listening to the other side. Negotiation experts know that a true dialogue and solution may only be found if parties both listen with empathy to each other and assert their own interests clearly but with respect for the other side. This problem solving and collaborative attitude is lacking in the Belgian institutional context.
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In this Op Ed, we comment on how the debate following the TV show at RTBF on Bye Bye Belgium illustrates the deafness on both sides of the language divide. People argue from within their position without listening to the other side. Negotiation experts know that a true dialogue and solution may only be found if parties both listen with empathy to each other and assert their own interests clearly but with respect for the other side. This problem solving and collaborative attitude is lacking in the Belgian institutional context.
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In this Op Ed published on Belgium national holiday 2006, we describe the historical proposed resolution in the Chamber of Representatives on the splitting of the Belgian State and the creation of independent states for Flanders and Wallonia. By majority vote this proposal has been accepted for discussion. The paradox is however that no one seems to takes this seriously. The proposal was introduced by the Flemish right extremist and separatist party Vlaams Belang. Francophone parties voted against. Flemish parties voted in favour but consider this a non event. Why continue to ignore such important signals? We argue that this proposal should be taken as an opportunity to open and start a truly constructive and positive dialogue. Keeping all options open, not only towards more devolution but also towards reconciliation and more unity.
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In this Op Ed published on Belgium national holiday 2006, we describe the historical proposed resolution in the Chamber of Representatives on the splitting of the Belgian State and the creation of independent states for Flanders and Wallonia. By majority vote this proposal has been accepted for discussion. The paradox is however that no one seems to takes this seriously. The proposal was introduced by the Flemish right extremist and separatist party Vlaams Belang. Francophone parties voted against. Flemish parties voted in favour but consider this a non event. Why continue to ignore such important signals? We argue that this proposal should be taken as an opportunity to open and start a truly constructive and positive dialogue. Keeping all options open, not only towards more devolution but also towards reconciliation and more unity.
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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.
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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.
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The Israeli-Palestinian conflict is deeply paradoxical: the basic outline of a deal is reasonably clear and yet this violent conflict persists with over 4,000 causalities since the collapse of the last significant effort to bring peace in 2000. The paper suggests that this paradox stems from internal conflicts on each side. It focuses on the internal conflict among Israeli Jews over the future of the Jewish settlements in the West Bank and Gaza. The paper describes the settlements today and argues that beneath the debate about their future, this tension implicates the core identity of some, but not all, the protagonists. The paper further reviews the history of the settlement movement, and shows how, in the face of opposition, a determined minority (the national religious settlers) promoted and vastly expanded the settlements. The paper then offers an explanation for why the national religious settlers have wielded such disproportionate influence in the Israeli political system. The paper ties the discussion to Prime Minister Sharon's proposed limited withdrawal from Gaza and the northern West Bank by the summer of 2005, and shows how the settlers, drawing on their sources of influence, are attempting to block any evacuation of settlements. In the concluding section, the paper focuses on the current conflict over Prime Minister Sharon's proposal and offers suggestions about how the internal conflict might best be managed.
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Robert H. Mnookin & Frank E.A. Sander, Foreword, 10 Harv. Negot. L. Rev. 1 (2005).
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Since the end of the 1967 Six Day War, successive Israeli governments - both Labor and Likud - have actively promoted or passively allowed settlement construction in the West Bank and Gaza Strip. Increasingly, however, many Israelis are coming to see the settlements as a major obstacle to lasting peace with the Palestinians, and as the linchpin of questions about the character of the Jewish state. The following monograph explores the legal aspects of a possible future evacuation or relocation of some Israeli settlements and settlers from the territories. The monograph reviews the existing legal framework in the territories and explores the multi-layered complexities of the law of the land. It distinguishes between areas annexed to Israel proper and non-annexed areas. The paper further distinguishes between the possibility of physical evacuation, and severance of the legal connections among the settlers, the land, and the land's structures. Finally, the paper addresses the question of fair compensation for settlers and concludes that any compensation would best be disbursed by a body created through primary legislation.
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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.
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Robert H. Mnookin, When Not to Negotiate: A Negotiation Imperialist Reflects on Appropriate Limits, 74 U. Colo. L. Rev. 1077 (2003).
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Robert H. Mnookin & Eleanor Maccoby, Facing the Dilemmas of Child Custody, 10 Va. J. Soc. Pol'y & L. 54 (2002).
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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.
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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.
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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)
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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.
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This commentary offers four observations on the relationship of the settlement process to the contingent fee. Each wa stimulated by Professor Samuel R. Gross's paper, We Could Pass a Law... What Might Happen if Contingent Legal Fees Were Banned, 47 DePaul L. Rev. 321 (1998). The first concerns the effects of fee arrangements on the settlement process. In most tort litigation today, "single-shot" plaintiffs with contingent fee lawyers face insured defendants whose lawyers are compensated by the hour. To what extent would the balance of bargaining power between plaintiffs and litigation insurance and where fee shifting with losers paying was the rule? The second observation, also connected to the settlement process, relates to the potential use of Alternative Dispute Resolution ("ADR") in accident cases. In a world where the contingent fee was banned, Professor Gross suggests there is little incentive for defendants to participate in ADR. I explain why, in terms of today's institutional arrangements, there would in fact appear to be powerful incentives for the demand for ADR to increase in the years to come. The third observation relates to Professor Gross's observation that "it is uncommon for plaintiffs' attorneys to compete by varying the terms of the contingent fee contracts that they offer." If plaintiffs" lawyers "rarely" compete in this way, in a market where there are admittedly large numbers of lawyers, what alternate form does competition take? With respect to the allocation of cases among plaintiffs' lawyers, what are the effects? The final observation relates to the overall transaction costs of an accident compensation system that largely depends not only on the contingent fee, but also on what Professor Gross correctly characterizes as a "highly complex, privatized, lawyer-dominated system of civil litigation."
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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.
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David C. Croson & Robert H. Mnookin, Scaling the Stonewall: Retaining Lawyers to Bolster Credibility, 1 Harv. Negot. L. Rev. 65 (1996).
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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.