Ellen E. Deason
It’s obvious that computer technology is changing the practice of law. Those who represented clients a few short decades ago would not recognize commonplace aspects of today’s law practice, such as e-discovery.
As law schools try to prepare their students for effective modern law practice they could be forgiven, however, for overlooking the need for training in e-mail communication. After all, aren’t today’s law students e-mail experts? They seem to live and breathe electronic communication in all its forms. Why should precious class time be devoted to developing e-mail skills?
But perhaps students’ easy familiarity with e-mail is part of their difficulty as they transition to using it in a professional setting. It is so commonplace in their lives that they may resort to automatic habits without being aware of the challenges of this form of communication. In addition, they quickly become accustomed to negotiating with their classmates.
To give students a chance to explore issues associated with using e-mails, and to develop their skills using e-mail professionally, last spring I used an e-mail negotiation as one of the simulation exercises in my section of the Dispute Resolution Processes: Theory and Practice class. The exercise also complemented class simulations by pairing students with someone whom they did not know, who might have different training and an unanticipated approach to negotiating.
The Moritz students were paired with law students in classes at the UC Hastings College of Law and Hofstra University so that they would be negotiating with an unknown partner.1 The simulation scenario was a sale of law books, with the students negotiating either on behalf of a law firm that needed to sell the books or one that was interested in buying them. The issues included the price of the books and the timing and means of delivery. The students could communicate only by e-mail, and had a two-week window to conduct their negotiation. At the end of the exercise, all the students provided feedback to their negotiating partners and the Moritz students wrote a reflection on what they had learned from the negotiation.
We spent no classroom time on e-mail negotiation before the students embarked on the exercise. Instead, I asked them to prepare by reading an excerpt from a chapter on e-mail negotiation entitled You’ve Got Agreement: Negoti@ting via Email.2 The authors maintain that the absence of social and contextual cues in e-mail negotiations leads to 1) increased contentiousness, 2) diminished information sharing, 3) a reduction in inter-party cooperation and integrative outcomes, 4) a diminished degree of inter-party trust, and 5) an increased tendency toward “sinister attribution” that attributes negative events to negative intentions by the other party.
The chapter suggests four skill sets that students should develop to cope with these effects: 1) writing ability to improve the clarity and emotional power in email messages, 2) message management of asynchronous communications to avoid distrust and take advantage of a slower pace compared to face-to-face negotiations, 3) relationship management with a faceless negotiating partner to build rapport and show “e-empathy”, and 4) context management to highlight the intended content of the message.
The reflection assignment asked the students to analyze whether they experienced these challenges and the techniques they deployed to best use e-mail negotiation on behalf of their (hypothetical) client.
The negotiation process
Many students made a special effort to adapt to the challenges of negotiating by email. The transcripts showed conscious efforts to establish rapport through friendly exchanges. Students reported that they took extra time preparing their messages and reread them carefully to ensure that they would be clear to their negotiating partner.
Many students commented that they did not experience diminished cooperation or the sinister attribution that can be associated with a low level of trust. Some, however, had a very different experience. Perceptions that a student wasn’t listening or was being evasive led to the rupture of two of the negotiations. The partners assumed the worst, when the underlying problem was more likely an assumption that was getting in the way of understanding.
In addition, students whose partners did not initiate the exchange or respond in a timely manner had a tendency to interpret this as disrespect or an intentional strategy than merely poor time management. Students who were reading emails very carefully and choosing their words deliberately sometimes assumed negative intentions when the partner was not taking as much care and overlooked a request.
Almost all the students reached an agreement within the allotted time period. In several other pairs, the students reached an agreement, but only by extending their negotiation beyond the time period allowed. And in two dyads, the negotiation broke off in an angry exchange, with one student accusing the other of bad faith. While some students negotiated an agreement that served the interests of both clients, others experienced barriers that included:
Students generally liked the asynchronous nature of email communication because they could take the time to react and think about their responses in terms of both strategy and tone. They saw the running transcript of emails as an advantage that let them reflect at various stages on the information their partner had previously shared. One student felt disassociated emotionally from the other person and found that to be an advantage in negotiation. Another felt that asynchronous communication made it very hard to build momentum from small agreements.
Students liked being able to conduct the negotiation at convenient times. However, some also commented that the email method was time consuming because they took so long to compose messages out of worry that the other side would misconstrue the content. Several reported that they monitored their language carefully, for example, avoiding any hint of sarcasm for fear it would be misinterpreted.
Some students observed that they had tried hard to build rapport and were open with information, but did not feel these efforts were reciprocated. Some were surprised to learn from their partner’s feedback that their own sincerity had been in doubt.
Others felt they were successful in building trust and commented on the lack of contentiousness in their negotiation. They found the suggestions in the article were very helpful in overcoming some of the difficulties of email negotiation. However, email negotiation seemed “fragile” compared to in-person communication. There was some feeling that the trust they had worked hard to build could be destroyed at any moment by a misunderstanding. In addition, even those who felt they were successful in building trust and exchanged a great deal of information often said they did not sufficiently understand the other parties’ interests and that they lacked context for the negotiation.
Despite being an electronic generation, the majority of students concluded that they preferred face-to-face negotiations or wished they could have used a telephone. They became very aware of the importance of facial expressions and tone of voice. Doing without those signals made them realize the extent to which they had been relying on them in face-to-face negotiations.
The challenge was partly attributable to difficulty in reading the other side and partly due to difficulty in expressing oneself. The students found it particularly hard to convey an informal or welcoming tone by email. Also, they had trouble gauging reactions. They thought it was harder to recognize when the other side misunderstood them, and also they could not take immediate action to backpedal or cure a misstep as they could in a face-to-face encounter.
From my perspective this simulation was a very worthwhile exercise. I’ll be running it again in the future.