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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

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She Negotiates

She Negotiates

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Dealing with "Jerks" - Tit for Tat in an Email World

I'm re-posting below an article published in both the Los Angeles and the San Francisco Daily Journals (the local legal rags) about the dangers inherent in email communication.  I do so because I had several complaints about the use of abusive email by in-house counsel last week at my negotiation training as well as in my twitter network from attorneys exasperated with combative emailers who refuse to take telephone calls (see post about conflict avoidance here)

My advice?  Use the tried and true tit-for-tat strategy:  retaliate for uncooperative conduct and be quick to forgive as soon as your bargaining partners bring themselves back into line.  The advice I gave on twitter (@vpynchon) this morning was simple and pointed:  tell opposing counsel that you will program your email system to automatically delete all of their emails until they pick up the telephone and give you the courtesy of a return call.

Below, my Daily Journal article on the Dangers of Using Email During Litigation.

 

This story occurs in the spring of 2001, in a hotel room in Toronto, at 3 a.m., the morning of a deposition I've been preparing to take of an aging petrochemical engineer.

2001 is a  year I'd dreamed of since elementary school.  But the technological changes predicted in the science fiction of my childhood and adolescence are nothing like the "hi-tech" I'm living with now.  

There are no one-man jets cruising the skies; no robots running my errands or cooking my dinner; no tele-transportation; and, on the political scene (it's not yet 9/11) no Big Brother

My personal 2001 "future" is mostly about my instantaneous access to information and "real time" communication via the "killer app" -- email -- telegraphic, spontaneous, unnuanced, and about to get me in a great deal of trouble.  (See Vanity Fair's must-read oral history of the internet here.)  

There's an associate back in Los Angeles, you see, the quality of whose work and the strength of whose dedication to the case at hand is in alarming decline.  More troubling, his work is deteriorating at the same time I'm taking old fashioned passenger jets from province to province to take the testimony of as many witnesses still living who know how 500+ toxic waste sites got that way in the first place.    

Did I say it's 3 a.m.?  The associate I'm thinking about failed to get me the outline I need for tomorrow's deposition on time -- or at all.  The "hard copies" that were supposed to be waiting for me when I arrived at the hotel have gone missing.  I'm tired.  I'm hungry.  I'm lonely.  And I'm angry. 

Worst of all, I'm composing an email to my  associate about my considerable disappointment in his recent performance.  There is a moment, a split second, in which my finger hovers over the "send" button while a rational voice in my head says "no."  Then I push "send."

Email Makes Settlement More Difficult  

More and more often when I'm meeting counsel on the morning of a mediation, they're also meeting one another for the first time.  In fact, they often have not even previously spoken to one another unless they've met in Court ("good morning, counsel") or in depositions (eyes averted; objections made).  Increasingly, by far the vast percentage of their communications have taken place via email.  

And that's a problem. 

Conflict Escalation

There's no question that litigation escalates whatever conflict existed when our client first walks in our door.  We don't, after all, make requests.  We issue demands.  We don't seek concessions.  We insist upon them.  We don't make inquiries.  We require responses.  And we're not such great listeners.  Rather, we impatiently tap our feet in Court, waiting for counsel to finish his argument (which we've heard dozens of times before) so we can press our case.

Are these bad things?  Not necessarily.  So long as we understand what we're doing and the likely results our conduct will have, escalation is not necessarily worse than maintaining a steady state or even deescalating conflict.  

The problem for most of us is that we don't know what we're doing and we don't understand the breadth and depth of the likely repercussions.  

In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management at Vanderbilt University quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy.  According to Rubin, et al., escalation is 

"an increase in the intensity of a conflict as a whole.”  Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.”  One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.

Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate.  Unlike conversation -- in person or by telephone -- we are not

physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . /*  [T]the inability to carefully time actions and reactions . . . makes communication less precise.  

E-mail Not Only Lacks Social Clues, it is "Profoundly A-Social." 

Sitting in my Toronto hotel room at 3 a.m., reviewing online documents for tomorrow's deposition and now "penning" an email to my errant associate, I am, argues Friedman, not simply making communication more difficult, I have become "profoundly asocial" as my associate will also likely be when he reviews my email the following day.  "E-mails," writes Friedman,

are typically received and written while the writer is in isolation, staring at a computer screen – perhaps for hours at a time, so that awareness of the humanness of the counterpart may be diminished.

As evidence, Friedman cites research in which subjects played the "prisoner's dilemma" game against a computer.  Not only did the gamers act asocially in this context, "many continued to act asocially even when told that they were now playing with people (through the computer)."

E-mail, Friedman concludes, "often occurs in a context devoid of awareness of human sensibilities."

The Precise Difficulties Caused by E-Mail Communications?

Use of aggressive tactics. If e-mail communication encourages the use of more aggressive tactics during a dispute, or makes a counterpart’s tactics appear more aggressive, then escalation will be triggered.

Changes in view of other. Escalation is more likely if e-mail causes negative changes in psychological processes (e.g., perceptions and attitudes) towards the other, such as (1) seeing the other as unfair, (2) lessening empathy toward them, (3) increasing deindividuation and anonymity, or (4) or seeing the other as immoral.

Weakened interpersonal bonds. If e-mail weakens social bonds with the other, then escalation is more likely (e.g., due to reduced inhibitions for aggression).

Problems are difficult to resolve. If the communication limitations of e-mail (e.g., asynchrony deficits) make problems more difficult to solve, conflict may be escalated as frustrated disputants move from mild to more aggressive strategies to achieve their goals.

As a result, says Friedman, there are "higher rates of escalation when disputes are managed via e-mail than via face-to-face communication or other relatively rich media . . . such as telephone conversations." /**

Back in Los Angeles the Following Day

You knew this story was not going to have a happy ending.  What a cranky, tired, stressed partner types into her computer at 3 a.m. and what a fully awake associate reads with his morning coffee the following day are, as Friedman stresses, two quite different things.  And though I've rarely had a face-to-face disagreement with a colleague that cannot be mended by further communication, apologies, explanations and the like, this particular communication caused a rift that I was unable to heal.

This experience from several years ago, coupled with my recent mediation experiences, makes me want to advise, exhort, plead, beseech, entreat and pray that you commence every litigation with a telephone call rather than a "demand" letter or email.  And that you continue to communicate with opposing counsel by telephone or, even more radically, in person over a meal, throughout the litigation to make sure channels of communication are as open and clear as possible.

The difficulties saved will not only benefit your personal life (reduce stress, increase fellow-feeling and the like) but will benefit your client as well -- in case efficiencies and better settlements all around.     

 

______________________

*/  "Grounding" is the process 

by which two parties in an interaction achieve a shared sense of understanding about a communication and a shared sense of participation in the conversation. Grounding is important because “speech is evanescent...so Alan must try to speak only when he thinks Barbara is attending to, hearing, and trying to understand what he is saying, and she must guide him by giving evidence that she is doing just this."

** /  There's much more to be learned from this article, but these highlights should tell you whether further reading is in your interest or worth your time. 

Comments (5)

Read through and enter the discussion by using the form at the end
Gavin Craig - May 18, 2009 12:02 PM

I like the story. However, looking at other peoples e-mails (usually from the opposing party) can be very informative. Not because they regret what they sent - but because they made a record that they are now stuck with. When one party, for instance, never objects to the description of a deal (verbal contract) expressed by the other party, it is hard for the first party to claim that the described agreement was not the agreement. In many contexts the emotion, or how the e-mail might be read the following day, is not as important as the statements in the emails and how the emails show an understanding or lack of understanding.

However, emails to colleagues are a completely different issue. E-mails have there place, both good and bad. As we all like to say, "It depends."

Vickie - May 18, 2009 12:24 PM

Thanks, as always, for your insight Gavin. Let me amend the advice: tell opposing counsel that until he returns your telephone calls you're automatically sending his/her emails to a "do not read" folder. This deprives the emailer of the main lure of email, instantaneous communication. You might say, "if I don't receive a return telephone call within ten days, I may or may not open that file, within my discretion." A best of both worlds approach.

Lilys McCoy - May 18, 2009 3:11 PM

I think that the real issue is conflict avoidance. If civility reigned, a lot of these "techno-issues" would fall by the wayside.

michael webster - May 20, 2009 9:45 AM

You might be interested in this:

http://www.strategy-business.com/re/recentresearch/re00053

"People are far more likely to lie in e-mail communication than in pen-and-paper communication, despite the fact that e-mails are harder to erase or keep from being distributed"

Cupero Law - August 16, 2012 11:15 AM

great blog, i always learn so much, thank you and keep it up!

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