First published in The Negotiator Magazine.
Computers have made it efficient and practical to conduct bargaining interactions electronically. Parties introduce themselves through e-mail exchanges, and send bargaining proposals back and forth as attached electronic files. This is an especially economical way to deal with parties located in other states or in other countries. Before individuals become overly enamored with electronic negotiating, however, some cautionary considerations should be appreciated.
Bargaining involves personal interactions. It is difficult to have good personal interactions conducted entirely in writing. It is so much easier to establish critical rapport through in-person or telephone exchanges during which the parties talk directly to one another. Professors Leigh Thompson and Janice Nadler of Northwestern University have conducted several interesting studies in this regard. They divided students into pairs and instructed them to conduct negotiation exercises entirely through e-mail exchanges. Half of the participants were given a five-minute schmoozing telephone call during which they could discuss their personal lives, their school experiences, and similar topics. They could not talk about their negotiation exercise. When negotiators who got the preliminary schmoozing phone call worked on their exercises through e-mail exchanges, they behaved more cooperatively, reached more agreements, and achieved more efficient arrangements than the participants who had no preliminary phone calls.
It is thus important for persons who plan to conduct their negotiations through e-mail exchanges to take a few minutes to telephone each other in an effort to get to know one another and establish some rapport. This is especially important with respect to parties who do not have on-going relationships. Once they have taken the time to talk personally, they can begin to exchange electronic proposals. They must also appreciate the fact that when individuals receive written proposals, they tend to read them carefully, and they often read too much or too little into specific terms. They assume that the sender’s proposals are self-serving and somewhat manipulative, even when this is not true. They may thus interpret fair proposals as unfair, and respond accordingly. They may quickly escalate the battle and generate a similar response from the offended original sender. To avoid this phenomenon, proposal senders should telephone the proposal recipients several days after their e-mail messages were sent to hear their responses. Ask them if they have any comments or questions. They may not like particular language that is actually innocuous. If they suggest substitute language conveying the same message, a quick substitution of their language for the original terminology can be disarming. It they are truly upset about a particular provision, the parties can directly discuss their disagreement. They may be able to work out an acceptable compromise. Even if they cannot do so, however, by discussing the term directly with one another they diminish the likelihood their disagreement will generate insurmountable obstacles to a final accord.
Another sad fact of electronic communication concerns the ease with which communicators can flame one another with intemperate comments most would be unlikely to convey in person or on the telephone. Someone receives a communication they find offensive, and they immediately draft a nasty response. If the other side responds in kind, a war of words may develop. If someone conducting e-mail exchanges does not like something said by the other side, they can sit at their computer and type a negative reply. This may make them feel better due to the cathartic nature of their actions. When they are finished, however, they should press the cancel button instead of the send button, and discard the offensive message they have prepared. They can then prepare a more detached and professional response that would be more likely to generate a constructive response from the other party.
One critical risk often ignored by electronic negotiators concerns the possibility they will convey far more information in their electronic files than they intended to convey. As they prepare their proposals, they request input from clients and colleagues. Those persons suggest new language and explain why they are making their suggestions. Once the proposals are reworked and become final, they are sent via e-mail attachments to the opposing side. Depending upon the software used, many of the alternative formulations may be buried in the electronic files as metadata. Knowledgeable computer experts may be able to “mine” the electronic files for such information and obtain comments and changes the sender did not intend for them to view.
The New York Bar Association [N.Y. State Ethics Op. 782 (2004)] and the Alabama Bar Association [Ala. State Bar Disc. Comm. Op. 2007-2 (2007)] have indicated that lawyers have an obligation under the rules governing client confidentiality to use “reasonable care” when transmitting electronic documents to prevent the inadvertent disclosure of metadata containing client confidences. It thus behooves lawyers and others to employ means designed to prevent the unintended disclosure of confidential information when they convey electronic files.
Is it ethical for the recipients of electronic files to mine such files for metadata that will provide them with drafting changes and drafter comments? In 2006, American Bar Association Formal Opinion 06-442 indicated that lawyers have no ethical duty to refrain from mining and using metadata embedded in electronic files received through e-mail or other modes from opposing parties. On the other hand, both the New York Bar Association [N.Y. State Ethics Op. 749 (2001)] and the Alabama Bar Association [Ala. State Bar Disc. Comm. Op. 2007-02 (2007)] have indicated that such mining of metadata in electronic files constitutes an improper attempt by the file recipients to obtain privileged information they have no right to see in an effort to obtain an unfair advantage over the other side. I was recently on a program involving corporate counsel when this exact question was raised by an attorney who had received an electronic file which he was able to mine for hidden information. Some of the attorneys in the audience thought this conduct was inappropriate, but others thought that if the sender was careless enough to send files containing such metadata, the recipient had the right to look for it. Persons sending electronic files during negotiations should be careful not to include more information than they really wish to convey. They should have computer experts delete any metadata they do not wish the recipients to see.
Joe Stulberg points out examples of what negotiable issues are in a mediation as opposed to mediating parties' emotions and labels.By Joseph Stulberg