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9 Harv. Negot. L. Rev. 223

Harvard Negotiation Law Review

Spring 2004



Janice Nadlerd1

Copyright (c) 2004 Harvard Negotiation Law Review; Janice Nadler


E-mail has recently become a popular mode of communication for lawyers negotiating deals and conducting settlement discussions. But the obvious conveniences of e-mail as a negotiation medium can blind users to its pitfalls. The impoverished nature of the e-mail medium can lead to misunderstandings, sinister attributions, and ultimately, negotiation impasse. How can lawyers make use of the advantages of e-mail for negotiation while overcoming its disadvantages? One solution consists of a very simple insurance measure: small talk. In the empirical demonstration described in this Article, law students each negotiated a commercial transaction with another law student at a different university using e-mail as the mode of communication. Negotiators who engaged in a brief, getting-to-know-you phone conversation built substantial rapport that resulted in positive social and economic benefits for both parties. This initial small talk by telephone made subsequent e-mail interaction proceed more smoothly because the early creation of rapport helped the negotiators approach the negotiation with a more cooperative mental model, thereby trusting in each other’s good intentions. This, in turn, led to a successful negotiation that concluded with a contract, and engendered positive feelings about one another as well as expectations of successful dealings in the future. By contrast, negotiators who did not engage in small talk were over four times more likely to reach an impasse, and ended up feeling resentful and angry about the negotiation. *224 The Article concludes by discussing implications and recommendations for lawyers who use e-mail to negotiate.

Would an Oral or written communication be best?

If the first what mode is to be adopted to effect it?

George Washington1


When George Washington sought James Madison’s advice about the best mode of communication to use when negotiating with the Senate, his array of options was quite limited by today’s standards. Yet the import of Washington’s query has grown over time, because we now have a larger number of communication options available. E-mail, in particular, is a dominant mode of communication for lawyers who are negotiating deals and settlements.2 But there is growing concern among lawyers and legal scholars that there are potential pitfalls associated with the use of e-mail for important communications like negotiations. Until now, these concerns have focused on issues such as confidentiality,3 privacy,4 and lack of formality.5 This Article highlights and discusses a very different issue regarding the widespread use of e-mail in negotiations: the possibility that the use *225 of e-mail inhibits negotiation or compromises the quality of agreements themselves.

This Article reports findings from an empirical study that addressed the question of whether the use of e-mail can hinder negotiators’ abilities to craft mutually-beneficial negotiated agreements. Based on these findings, I argue that there is indeed reason for worry when lawyers--especially lawyers who have not worked together in the past--use e-mail to try to close an important deal or settle a contentious dispute. As I discuss in detail below, the absence of social cues in e-mail communication can lead to unwarranted suspicion, blame, and ultimately, negotiation impasse. Does this mean that lawyers should avoid e-mail at all costs when engaging in negotiations? In this Article, I demonstrate empirically that there is a simple way to avert the escalation of negative emotion, miscommunication, and eventual impasse that can characterize e-mail negotiations. Indeed, the study discussed here confirms what every Persian rug merchant knows when he insists that his customer sit down for a cup of tea prior to talking business: engaging in small talk prior to negotiating can set the stage for an atmosphere of trust and communication that can ultimately create value for both parties in the negotiation. This Article begins by discussing research regarding how e-mail and face-to-face communication differ, highlighting various advantages and disadvantages of e-mail. I then discuss the role of rapport in negotiation. I argue that because negotiation often involves interpersonal conflict, rapport between negotiators acts as a social tranquilizer, preventing negotiators from becoming agitated. Next, I report the results of an empirical study, which tested whether a rapport-enhancing intervention could alleviate the miscommunication and social friction associated with e-mail. I conclude by discussing implications of the research and offering recommendations for lawyers who use e-mail to negotiate.

I. E-mail v. Face-to-Face Communication

E-mail is now an integral part of law practice. Legal news sources regularly publish columns advising lawyers how to use e-mail *226 most effectively and warning of various pitfalls in e-mail communication.6 Indeed, a single e-mail message written by an in-house Arthur Andersen attorney reportedly was the basis for the criminal liability of the company for obstruction of justice in the Enron investigation.7 Despite these potential drawbacks, at least one commentator has asserted that e-mail is now the dominant mode of communication for lawyers.8 Some pro bono organizations view e-mail as an important new tool for encouraging lawyers to perform pro bono work.9 Courts have begun to send notices and orders to attorneys via e-mail instead of U.S. mail.10 There is a growing body of case law regarding the legal status of e-mail messages in the statute of frauds,11 the role of e-mail communications in establishing personal jurisdiction,12 and whether e-mail communications between lawyers in a single firm are considered published material for the purpose of stating a claim for libel.13 On-line mediation is becoming an increasingly common *227 method for resolution of disputes that arise in e-commerce.14 The prevalence of e-mail in legal practice is in some sense predictable, given its clear advantages: the ability to use e-mail to communicate with clients, co-counsel, opposing counsel, and even colleagues within the same office eliminates the need for people with hectic schedules to coordinate a time and place to meet or to coordinate a time to speak on the phone.

The benefits of e-mail for lawyers are especially evident in negotiation. Whereas in the past lawyers were forced to arrange a series of face-to-face meetings with opposing counsel to conduct settlement discussions or to discuss the terms of a deal, the availability of communication technology such as e-mail allows lawyers to negotiate “on the fly” without the need to set aside special days and times to talk with other lawyers involved in the deal or dispute. Because many negotiations between lawyers take place over a period of days, weeks, or months, e-mail affords the advantage of allowing each negotiator to reply to proposals at his or her own convenience, rather than coordinating availability with the counterpart.

Beyond convenience, e-mail affords certain strategic advantages. The lag time inherent in e-mail enables negotiators to take time to plan their next negotiating move, and to carefully craft their communications before sending them. E-mail also has the capacity to transmit complex, precise, quantitative information, which can be crucial in complex negotiations. One study of electronically mediated negotiations reports that e-mail discussions generate more complex, integrative proposals compared to face-to-face negotiations.15

To create an agreement that efficiently captures value for both parties, there must be sufficient exchange of information to identify potential tradeoffs among the available issues.16 Exchanging offers involving many issues has proven to be a more effective method for generating integrative agreements than resolving issues one-by-one. The ability to transmit complex offers and integrative proposals is *228 especially important in the context of transactional negotiations, in which the issues often are numerous and intricate. Despite the importance of discussing issues simultaneously, face-to-face negotiations tend to progress on an issue-by-issue basis17 due to the limited “baud rate” of face-to-face conversation and conversational norms of brevity.18 In contrast, e-mail negotiators can and do make complex offers involving packages with multiple issues.19 E-mail communications also offer negotiators a chance to convey complex messages without the threat of being interrupted or the need to squeeze one’s message into the cadence of the conversation.

At the same time, however, e-mail can be a hazardous form of communication. Statements made in e-mails often come across as abrasive or negative simply because they are not embedded in the shared context that face-to-face communicators experience.20 Face-to-face contact contributes to smooth communications because, although seldom consciously recognized, people rely heavily on nonverbal signals to help them conduct social interactions. Important behavioral, cognitive, and emotional processes are set into motion when people interact in person. Face-to-face negotiation allows people to develop rapport--the feeling of being “in sync” or “on the same wavelength” with another person.

In negotiation, rapport is a powerful determinant of whether people develop the trust necessary to engage in the kind of information exchange needed to reach integrative agreements.21 Nonverbal (body orientation, gestures, eye contact, head nodding) and paraverbal (speech fluency, the use of “uh-huhs,” etc.) behaviors are key to building rapport.22 When the person with whom we are negotiating sits at a greater distance, with an indirect body orientation, backward lean, crossed arms, and little eye contact, we feel less rapport than when the same person sits with a forward lean, an open body posture, and *229 maintains steady eye contact. Without realizing it, people involved in face-to-face interaction tend to mirror one another in posture, facial expression, tone of voice, and mannerisms. This phenomenon, known as social contagion, is the basis for the development of rapport between people.23 On the surface, it might seem that mimicking would be extremely annoying--almost like a form of mockery. The type of mimicry that is involved in everyday social encounters, however, is quite subtle--people do not usually recognize when it is happening. At the same time, the effects of social contagion are very powerful. When two people are mirroring one another, their movements become a choreographed dance. To the extent that our behaviors are synchronized with those of others, we feel more rapport, and this increases our trust in those with whom we communicate.

As a communication mode, e-mail effectively silences the music that drives the social contagion dance. E-mail negotiators are deprived of cues from the other person’s body language (e.g., “She is frowning, so I know she doesn’t like my offer”), as well as cues from the other person’s voice (e.g., “He is laughing so that remark was clearly meant sarcastically”). Other social cues that we routinely use in face-to-face communication but are missing from e-mail communication include tone of voice, facial expression, head nodding, and mimicry of facial, vocal and postural movements. In a bargaining context, the impoverished nature of the e-mail medium makes it difficult to establish a feeling of interpersonal connection with the other person, which in turn can lead to misunderstandings, sinister attributions, and ultimately, negotiation impasse.24

II. The Role of Reciprocity in Negotiation

The choice of communication medium is largely a contextual one: e-mail is better suited to some negotiations than to others. Negotiations between people who already know one another might be particularly well-suited for e-mail. When people know each other they tend to be more cooperative generally and in negotiations specifically.25 *230 For example, in the context of legal settlement negotiations, Johnston and Waldfogel examined whether the existence of a prior relationship between opposing counsel would affect the likelihood of settlement in civil lawsuits.26 After examining thousands of cases, they found that cases were resolved more quickly and were less likely to go to trial when opposing counsel had faced each other in the past than when the attorneys did not know each other.27 The authors concluded that when attorneys have repeated interactions, they learn how to communicate more accurately with one another, which promotes the sharing of crucial information.28 The elimination of information asymmetries allows attorneys who know each other to converge on a settlement that is perceived as acceptable to both sides.

The Johnston and Waldfogel study does not resolve the question of why attorneys who have faced one another in the past would be more willing to share private information, especially in light of the adversarial context of their prior interactions. Instead of cooperatively sharing information, we might predict instead that frequent adversaries would become even more adversarial over time, leading them to hide information. One explanation for Johnston & Waldfogel’s findings is the power of reciprocity. The idea that reciprocity flows from relationships--even adversarial relationships--is an important one for understanding e-mail negotiation dynamics, where social cues are scarce and rapport is difficult to establish. In Bowling Alone, Robert Putnam argues that social networks have value because they incline people to engage in reciprocity, or mutual aid.29 For example, talking to other parents involved in a youth soccer league can lead to the learning of valuable information, such as the existence of a job opening or a proposal before the city council regarding historic preservation. Neighbors who talk to each other may engage in mutually beneficial arrangements such as keeping an eye on each others’ houses or trading dog-sitting duties. Gem traders who are part of a tight social network are better able to trade diamonds *231 without incurring transaction costs such as testing purity.30 Relationships among members of social networks (variously defined) create opportunities for information exchange, reciprocity, and cooperation. These opportunities are quite apart from the nature of the relationships in the networks. As Putnam points out, it is not necessary that the people in these networks be friends or even like one another. The important point is that people are connected.

The reciprocity that flows from relationships helps to explain Johnston & Waldfogel’s findings that lawyers who frequently face one another are better at settling cases together than lawyers who are complete strangers. In the context of negotiation, interacting with someone who is within a social network to which you belong has potential advantages over negotiating with a complete stranger.31 There is an expectation of reciprocity present within a social network that is not present when interacting with someone outside our network.32 One obvious reason is that often we care more about people within the network--in a social network where people are friendly and like each other, each person is concerned about the well-being of other members of the network.33 Concern for the other, however, seems an unlikely explanation for why litigation adversaries--who often interact in the context of highly contentious and decidedly unfriendly relationships--are more successful negotiators.34 Fortunately, feelings of friendliness toward and liking of the other person are not necessary for developing reciprocity expectations. Quite apart from altruistic concerns, sharing a social network improves the flow of information.35 Achieving information flow in negotiation is a key step in finding the right combination of issues, and options within those issues, to achieve an outcome that is profitable for both sides.36 In the absence of information flow, negotiators are likely to fail to capture the entire cooperative surplus available.37 Information flow allows negotiators to put a set of options on the table that maximizes the joint value of the agreement.38

*232 Information flow in negotiation is rarely easy to establish, owing to what has been called the “negotiator’s dilemma.”39 If you share too much private information, or the wrong kind of information, the other negotiator can take advantage by claiming virtually the entire surplus, and leaving you with the prospect of an agreement that is only slightly better than no agreement at all. To be cautious and to make sure the other party does not gain an unfair advantage, a negotiator must hold her cards close to her vest.40 But if both parties play it “safe” in this manner then information does not flow, surplus is not captured, and options on the table remain unsatisfying, resulting in a low quality agreement or no agreement at all.41 Meanwhile, revealing to the other party one’s own preferences and priorities could allow for profitable tradeoffs to be made.42

Some familiarity with one another can help both parties feel more comfortable with the kind of information exchange that promotes an optimal agreement.43 Knowing the other person increases *233 feelings of accountability and reciprocity, even if their acquaintance is extremely minimal. For example, social psychologists Bibb Latane and John Darley tested the idea that a person who has brief verbal contact with another person is more likely to later help when he overhears that person having a seizure.44 They set up a situation in the laboratory where the experimental subject interacted briefly with another “subject” (actually a confederate of the experimenter) for less than one minute--engaging in small talk while waiting to participate in the experiment. The subject was under the impression that five other subjects were participating in separate rooms, connected by an intercom system. During the experiment, the subject overhears on the intercom another “subject” (actually the confederate) having a seizure in another room. Subjects who engaged in one minute of small talk with the seizure victim prior to the experiment responded twice as quickly and were twice as likely to respond as subjects who had not engaged in small talk. The precise reasons for this striking difference are not entirely clear. Darley and Latane hypothesized that subjects who met the victim (even though it was just through small talk) felt more accountable to the victim.45 The connection that is established between people who engage in brief small talk may be the spark that initiates expectations of reciprocity.

Extending this finding to the e-mail negotiation context, we would expect that engaging in a brief, getting-to-know you chat prior to conducting e-mail negotiations would generate better information flow (as demonstrated by Johnston & Waldfogel) and greater expectations of reciprocity (as suggested by Darley & Latane) than not engaging in prior small talk. Thus, one could infer that engaging in small talk prior to negotiating leads to a greater likelihood of reaching a negotiated agreement. However, this hypothesized result is at odds with the predictions of standard game theory, which would predict that negotiators’ outcomes would not differ on the basis of polite chit-chat prior to negotiating, because such communication constitutes cheap talk--i.e., costless, non-binding, non-verifiable communication.46 The hypothesis of non-influence of cheap talk is especially plausible in the case of a brief, getting-to-know you chat conducted prior to negotiating, where the conversation has nothing whatsoever

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