May 18, 2015 Articles

What Should You Consider if You Plan to Negotiate By Email?

By Joan Sterns Johnsen

As technology evolves, people evolve with it. We lawyers, who once would never communicate by email, now regularly conduct our most important communications that way—and often from a mobile device while away from the office tending to other matters. While we once handled important negotiations in person or on the telephone, we now routinely conduct these important exchanges via email. We might not even be working from our office and our computer. Instead we might read and respond to an important counter-offer on our phone or tablet while standing in line waiting for a sandwich.

We may not give much thought to the fact that our negotiation is now via email, but we should. Email communication is different in important ways from telephone and face-to-face conversations. The nature of the email exchange carries advantages over more traditional forms of communicating, but it also has its disadvantages. If we are mindful of these differences, we can make more strategic choices when using email.

Email Advantages
An obvious advantage of email negotiation is convenience and immediacy. There is no need to schedule a face-to-face meeting or even a telephone call. There are no time zones or schedules to coordinate. Another advantage is that email creates a written record. A written record of the negotiation can help avoid differences of recollection as to the exchange of numbers and terms.

As a mediator, I may be brought into a case after the parties have engaged in traditional face-to-face or telephonic negotiation. It is not remotely unusual for each side to have a different memory of the numbers and terms exchanged. Email negotiation can allow parties to avoid this problem. Another advantage of using email is the opportunity for reflection and consultation with clients and partners between offers and demands. This would be much more difficult when the negotiation is conducted in real time—whether in person or on the telephone. Email also can be an advantage when there is animosity between parties. The use of a more carefully worded written exchange often proves to be more "neutral," avoiding negative counter-productive emotional triggers that so commonly arise in telephonic or face-to-face negotiations. As a result, email has become a popular choice for negotiating all types of matters—from the simple, to large complex multi-party transactions, settlements, and negotiations.

Email Disadvantages
However, email suffers some disadvantages, too. For example, the quality and richness of communication via email is different from communication on the telephone or in person. Email negotiators miss out on non-verbal and contextual information conveyed through tone of voice, inflection, facial expression, gesture, etc. This can be a disadvantage because we rely heavily on context and non-verbal information to interpret verbal messages and to understand whether the speaker is friendly and joking, or serious and angry. Although email communication permits us to carefully shape our intended message, it simply does not allow for natural pauses and interruptions. The natural speech pattern allows us to provide cues to the speaker that we agree, disagree, or require further clarification. And most importantly, these interruptions allow us to build understanding. Email negotiations, moreover, are far less conducive to establishing rapport and trust—factors that are essential for sharing information and finding integrative solutions. Rapport and trust are particularly important when negotiations are at their most difficult, such as when impasse looms large.

This fact that email communication is fast—often perceived as instantaneous—also can have its drawbacks. Emails are actually asynchronous—information is not necessarily exchanged in real time. However, unlike with "snail mail," people have expectations that an email or text is received and immediately read. Accordingly, people expect an immediate response. This can lead to misunderstanding and misinterpretation. People may attribute motive to a delayed email response when no motive exists. Finally, there is the confidentiality and privacy issue. Unlike other forms of communication, emails can be forwarded quickly and widely. One never really knows the full universe of people with whom a communication will be shared.

Email Tips
There are some techniques for managing email negotiations and for addressing the disadvantages. If you are negotiating with someone you have never met, consider establishing a personal relationship before you begin the back and forth by email. Studies have shown that even a simple phone call and the identification of some commonality can help with subsequent email negotiations.

Take care with each email. Take the time to read all the words and read them carefully before you respond so you do not misconstrue the intended message. Always consider whether there could be misinterpretation of tone or even of a delay in an email. Consider whether your own email could be better written to avoid being misconstrued. This is often especially true of humor which, although an important tool in building rapport and trust, can often be misunderstood in an email. In order to take the proper care, handle important communications from your office, not on the run from your mobile device. Never lose sight of the fact that each email may be forwarded and shared well beyond the intended recipient. Remember that although email is convenient and has advantages, there are times during the course of your negotiation when picking up the phone is the still the right choice.

Email negotiation is an important option and increasingly difficult to avoid entirely. It offers distinct advantages over other choices as long as negotiators make informed choices and as to when, where, and how they conduct their email negotiations.

If you would like to read more about negotiating by email, you may enjoy this article by Professor Noam Ebner of Creighton University.

Keywords: alternative dispute resolution, litigation, email, negotiation, electronic communication

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