More Dangers in Negotiating by Email
Over at IP ADR, we warned against using email to negotiate because the social scientists tell us that it is "profoundly anti-social," i.e., we're less generous when we respond to an offer via email than when we're negotiating face to face.
Today, Scientific American warns us that emailers tend to deceive one another more readily than do those who use pencil and pad -- see Business, Lies and Email here, excerpt below.
E-mail is often a rather casual form of communication. Language is more informal and grammar, well, it ain’t a priority. Now comes a study that finds that people tend to lie more in email than when writing with pen and paper. This research from DePaul, Lehigh and Rutgers Universities. . . . .
To the extent that a lie made during negotiations could be the basis for a fraudulent inducement claim down the road, written proof is written proof, whether the writing is an e-mail or "snail mail" communication.
People negotiating by e-mail may actually tell the truth more frequently than those negotiating face-to-face, because it is easier to later deny having made an oral misrepresentation than a written one.
Thanks for dropping by to comment Lisa. (nice web site by the way)
You're correct that email is perfectly good proof in court and, as documentation, as good a constraint against deception as a letter and a better one than undocumented oral representations.
If my 25 years of commercial litigation practice taught me anything, however, it taught me that it's far better to prevent deception than to litigate its consequences.
Much of my work required me to interpret the meaning of writings after a dispute arose and litigating the issue whether the parties' documented communications were or were not misleading.
I am happy to say I left legal practice before email became nearly the sole method of communication among business people. Parsing the meaning of email would, I imagine, be more difficult than formal written correspondence because of its telegraphic nature.
The best guard against fraud in the inducement was then and is now a contract written as clearly as possible, containing an integration clause, and reciting all of the representations made by the parties that were material to their decision to enter into the agreement in the first place.
This is particularly critical for mediated settlement agreements here in California where the law does not permit discovery concerning nor the introduction into evidence of any communications, written or oral, that led to the execution of a mediated settlement agreement.
Online dispute resolution (ODR) with e-mail as one of its tools is quite viable so a blanket prohibition on using e-mail to negotiate may be a little too strong.
There is now evidence to suggest that ODR can actually be transformative which in itself illustrates its potential.
Certainly, e-mail is not as rich a medium as face-to-face communication, but by allowing both targeted and asynchronous communication it can facilitate participants to make progress between meetings.
There is however, no doubt, that "trust" is a major (perhaps "the" major) issue facing ODR and the Internet itself.