Email Negotiation: A Powerful Tool to Enhance Negotiation ...

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Email Negotiation: A Powerful Tool to Enhance Negotiation Requires More Precautious Use Than Practiced

New communication technologies have changed the way people interact. The invention of the telephone in the nineteenth century paved a new way for negotiating at a distance. A new set of rules developed as a result of speaking over the phone because communication is more difficult with the physical absence. Negotiators have experienced the same kind of change with the development of email. The massive use of email as a medium to communicate has once again deeply transformed the negotiation process.

Unlike litigation where the parties rely on a third party to make the decision, negotiation leads to a joint decision made intentionally by the parties. The negotiation process involves communication of a controlled amount of information in order to reach an agreement. In other words, it is an “interactive communication process that may take place whenever we want something from someone else or another person wants something from us” (SHELL, 2006). Entering in this process, “disputing agents decide how to divide the gains from cooperation” (FATIMA et al., 2007). As a result, parties must find an effective ‘medium of communication’ (ROBERTS & PALMER, 2005). In many cases, this medium is email.

Email is one of the most commonly written mediums that people use to communicate.

It gives the opportunity of exchanging messages instantaneously. Yet, its asynchronous nature makes email unique. Unlike instant messaging systems, email is often considered most similar to letters rather than face-to-face or telephone negotiation.

Email negotiation is well suited to carry on negotiations. It can be used in various cases

from lawyers exchanging arguments in order to settle a case, to a British retailer bargaining with its Indian supplier, to an employee trying to get a promotion from his or her employer. Email negotiation has also become key in the resolution of online disputes related to e-commerce or the growing ‘sharing economy’ (KOPYTOFF, 2013). In addition, negotiators are more and more willing to negotiate important issues via email.

However, many professionals are still not trained to use email in a way that would help them to reach favorable agreements. The lack of skills regarding email negotiations can damage relations between the parties because of frequent misunderstanding and mistrust. Therefore parties need to know how to bolster cooperation, interaction, and exchange of information via email in order to enhance their online communication. In light of these risks, it is important to ask: What set of rules one must follow to take advantage of negotiating via email?

Online negotiators should capitalize on the numerous advantages, which explain the

increasing popularity of email negotiation (I). However, the concealed truth is that absence of face-to-face relations during negotiation produces several issues, which can strongly damage the relationships between the parties. Negotiators should be aware of these issues in order to maintain good rapport (II). Finally, respecting precise rules can help negotiators to overcome these hurdles and improve the whole negotiation process (III).



I – Email: A widespread medium for conducting negotiations Email has undoubtedly become a widespread medium of negotiation. Its popularity arises from the ease of its use to negotiate (A) and its suitability to deal with modern complex negotiations (B). Online negotiators should make the most of these advantages to improve the negotiation process.

Email is a quite convenient medium of communication. Its use cuts down negotiation costs, widening the access to negotiation and helping to resolve more disputes. Using email, negotiators can also improve the quality of the negotiation process by slowing down the flow of communication. Moreover, email offers advantages that suit the needs of the contemporary style of negotiation, which involves complex issues and numerous parties.

A) Email: A convenient medium of negotiation

1. Reduced cost of the negotiation process One of the factors that have made email so popular is the small cost of its use (FRIEDMAN, 1997). Email has reduced the cost of the negotiation process because it provides a way to transcend time and space, by making messages instantaneously deliverable around the world. The cost of negotiation is utterly relevant in the current economic situation, which leads companies to concern about cutting cost and improving productivity.

First, negotiation can be carried out all around the world without extra expenditure. Given that parties are able to negotiate from their locations, they are no longer forced to spend a lot of money and time on transport. More and more disputes arise in different countries and the parties cannot always afford to pay for traveling. Negotiation can henceforth take place from virtually everywhere at a rather small cost. This makes email a really attractive form of negotiation.

Second, negotiation can take place at anytime, day or night. Email is extremely flexible. Thanks to its asynchronous feature, email does not necessitate instant answers. Thus, busy negotiators are able to interact without the need for organized face-to-face meetings with other parties. Negotiators can more productively organize their schedules.

More significant is the fact that email negotiation is no longer limited to elite

businessmen and wealthy early adopters as it was until the late nineties (FRIEDMAN, 1996). The access to email negotiation has followed the remarkable increase in Internet use. Today, sending an email is not only inexpensive but also easily accessible, even in emerging countries (KALBA, 2008). Smartphones have given access to the Internet to an impressive number of persons. Thus, negotiation can truly take place everywhere with the approximated 1.75 billion smartphone users, in addition to all the computer users (EMARKETER, 2013). This high rate of accessibility makes negotiation easier and undoubtedly diminishes the number of cases resolved through litigation.



According to Gulliver’s developmental model, finding an arena is a preoccupation of the parties during the early stage of negotiation (1979). The arena is no longer a physical place where the parties can meet. Email negotiation has collapsed the physical distance and negotiation can be conducted everywhere. Therefore, the meaning of arena has evolved from a specific place to the medium used by the parties in order to pursue negotiation. This evolution has led Roberts and Palmer to use the term forum instead of arena (2005). Email enables more flexibility and strongly reduces the cost of the negotiation process. For example, parties save extra money as they avoid booking a meeting room. In some circumstances, email negotiation may be the only available option for negotiators who cannot afford long distance transportation cost, or who are involved in low-stake disputes, such disputes related to ecommerce.

As a result, email negotiation enables negotiators to save time, money and energy by

avoiding travel and sit-down meetings. Its accessibility makes it one of the most widespread mediums of interaction among negotiators and encourages negotiation rather than adjudication. It is also one of the most convenient mediums to carry on negotiation since its asynchrony helps to plan a strategy.

2. Opportunities to plan the negotiation strategy via email more easily Planning is critical (FISCHER & ERTEL, 1995). Fortunately, email enhances the negotiation process because online negotiators have the time to write more prepared responses than during a meeting, and can avoid common mistakes.

Email is convenient for negotiators because its asynchrony helps negotiators to provide prepared responses. Messages are immediately communicated to the recipients but then they can postpone their answers. Given that the presentation of email is close to the form of traditional mail, in practice parties do not expect instant answers. This asynchronous nature gives the possibility to take time so as to write a well-prepared answer after having received a message. Negotiators have time to develop their proposals and to plan their next moves (NADLER, 2003). Unlike an in-person meeting, which requires negotiators to respond spontaneously to a statement, email enables negotiators to plan more judicious answers. Negotiators can reread and amend answers before sending them to other parties.

Furthermore, parties can avoid making mistakes, such as being surprised by new information or contradicting oneself. The physical distance of the parties safeguard them against the pressure of the other party. Indeed, the parties do not waste the time of the other when they are preparing their answer. As they are not pushed to answer as quickly as in a meeting, they avoid spontaneous mistakes. The main benefit of asynchrony is to be able to slow down the negotiation process (MELAMED, 2002). Parties are therefore able to craft their responses safely without interruption or pressure from the other side. In light of this feature, better-crafted emails, which often differ from impulsive drafts, are exchanged.

Finally, the asynchronous feature of email improves the negotiation process because it makes it easier to check facts and bring new information to the table. In an in-person meeting a negotiator could easily try to bluff by inventing false facts. Since the other party has more time to answer, he or she can verify the information.



B) Email: A suitable medium for conducting modern negotiation Information has become key in the modern negotiation process, which involves complex

information, information shared by multiple parties and the need for written evidence. Email helps to deal with these new issues.

1. An efficient tool for resolving multi-party and intra-party issues The effect of globalization and the multiplication of complex organizations tend to increase the number of interests included in disputes. Issues involving more than two individuals render the communication between the parties as well as within each one of them more difficult. Email is a suitable tool to deal with this modern issue.

1.1 The usefulness of email for multi-party disputes

Email not only allows sending messages from China to the United Kingdom in a matter of seconds, it also makes it easy to send identical messages to numerous persons simultaneously. Numerous parties can receive the identical message at the same time and participate together in the negotiation process. It is also simple for them to divide the issues by sending different messages so as to create various groups during the negotiation process. As a result, emails help negotiators deal with multi-party issues by making more parties actively involved in the outcome.

1.2 The advantage of email for intra-party negotiations

Email negotiation facilitates communication within each party. A two-party negotiation does not always mean that the negotiators have the power to make the final decision. For example, a CEO might have to report the negotiation to shareholders of the company. Similarly, leaders of groups, such as lobbies, associations, or political parties are scarcely able to ignore the public opinion. They also have to negotiate with the group they are representing. Therefore, a “two-level game” takes place where multiple negotiations happen simultaneously: a first negotiation between the negotiators and a second one between each negotiator and the group that he or she is representing (PUTNAM 1993).

Email facilitates interactions between the negotiator and his or her company, association, or constituency. In face-to-face negotiation, negotiators have to postpone the negotiation process at every stage so as to get the opinion of the group they represent. By contrast, the asynchronous characteristic of email gives opportunities to internal private communication and decision before sending a response (YUFEI, 2005). For instance, in cases where negotiators have their hands tied, a meeting can be a waste of time because it will not result in an agreement. Therefore, email can be used to confirm a proposition after each negotiator has reported the meeting to those who have power to make the final decision. Email enhances the negotiation process by making it easy to meet several interests at the same time.

2. Communication of complex information and multi-issue propositions



Email’s asynchrony is an asset for coping with the modern complex disputes involving various issues. In practice, cases where parties have to deal with only one issue are rare. Most of the time, parties are involved in negotiation dealing with numerous issues. Thus, it requires the communication of detailed information.

Negotiators can exchange detailed data and more complex information over email. As a written medium of communication, email makes it simple to enumerate lists of arguments. In addition, files and documents can be attached in order to give more precise information. Lastly, the flow of information is uninterrupted. Namely, parties can develop their arguments without interference from the other party.

Face-to-face communication contrasts with email negotiation in a way that is more

likely to progress on an issue-by-issue basis. The amount of information exchanged is limited by social ‘conversation norms of brevity’ (GRICE, 1989). When a party speaks, he or she will have to stop because the other expects to present counterarguments after only few minutes. These conversation norms radically break the flow the negotiation and become hurdles to multi-issue cases.

In contrast, email allows dealing with complex information, which has a positive effect

on the outcome. Indeed, more detailed and quantitative information exchanged leads to more multi-issue propositions (MORRIS et al, 2002). Multi-issue propositions help negotiators to be creative in order to find agreement meeting their different interests. Integrative propositions involving several issues are encouraged by the fact that negotiators are not interrupted because of the cadence of the conversation.

Email enhances the complex modern negotiation process because it enables dealing with

numerous issues at the same time. Negotiators can develop elaborate propositions and reach more favorable outcomes. Nevertheless, negotiating via email also creates hurdles for the negotiators. It is more difficult to communicate through email and the use of technology might have negative consequences. Negotiators must be aware of these obstacles in order to email negotiate effectively.

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II – Email: A complex medium requiring awareness of its pitfalls Email negotiation can be dangerous because of the difficulty of expression via email. It presents many hidden hurdles that negotiators must know so as to avoid damaging their relationship.

Most problems during the negotiation process arise because negotiators overlook the lack of trust that can arise from email communication. Even experienced negotiators can encounter difficulties as they negotiate via email, especially because of misunderstanding and negative assumptions. Without any mutual understanding of how to use the medium, it is not possible to build strong social rapport. What is worse, conflicts are more likely to arise as trust is inhibited by the absence of face-to-face relations between the parties. Moreover, email raises issues related to the use of technology. It makes it difficult for negotiators to stay focused when they work on the negotiation. The asynchrony may also have the negative effect of unforeseeably prolonging the negotiation process. Finally, email technology makes it harder to guarantee a safe and confidential environment and increases the risk of collusion

Therefore, email negotiation requires the awareness of its complexity. As G. Richard Shell wrote in Bargaining for Advantage: “The art of being a good email negotiator is more complicated than many people think. A lot of damage to relationships is being done by people who underestimate that complexity” (2006). Indeed, the misuse of email negotiation can damage a relation. Problems arise because email negotiators are most of the time unaware of their ignorance regarding email (LUTZ, 2012). Yet, a poor use of email communication can highly damage rapport between parties because such communication is filled with misunderstood messages. In order to improve the negotiation process, online negotiators must be aware of the communication hurdles (A), as well as the concerns with security and confidentiality (B).

A) Communication pitfalls

The use of an asynchronous written medium such as email creates many communication hurdles with which negotiators have to cope. While online anonymity creates a lack of trust, ambiguous messages become common practice because negotiators have their own expectation about the use of email. Spotting these communication issues can help reduce their impact on the negotiation process.

1. The significant lack of trust between online negotiators Trust is the backbone of negotiation; without trust, parties cannot reach any agreement and will prefer to resolve their dispute in court. Yet, one of the largest hurdles of email negotiation is the lack of trust. Negotiators should take into account that mistrust arises because email conceals nonverbal behavior and emotions. This makes it difficult to have a clear first impression and to communicate informal information, which help to build good rapport. Thus email communicators have to face the challenge of establishing trust.



Geographical distance and the impossibility of being face-to-face with the other party explain the problem of mistrust within email. As Grahe and Bernieri show, nonverbal cues such as open body posture, head nodding, or steady eye contact are fundamental to improving communication (1999). In their study, perceivers who had access to nonverbal behavior comprehended communicated information much more accurately than those without access. Body language does influence other parties because it builds confidence (FINDELY & SALES, 2012). Therefore, body language as well as other nonverbal cues is at the center of communication. Lacking of behavioral information from the other, parties are less likely to build accurate opinions about the other and then to trust each other.

The early stages of negotiation are decisive because parties rely on their first impression

to determine whether they can trust the other party. Yet, it must be considered that email creates obstacles to this essential first impression due to the lack of non-verbal cues. Online negotiators do not have the opportunity to make a firm handshake, to show sympathy, or to witness the other’s credibility. It is also harder to demonstrate one’s willingness to reach a favorable outcome. Morris et al. explain that negotiators tend to rely on behavioral cues to overcome the initial mistrust (2002). By getting to know each other, negotiators build trustful relationships. The main problem is the lack of contextual cues, which impedes negotiators from being aware of each other’s personality. Given that the basis of trust is communicated in open behavior (e.g. open-palmed gestures or smiling), email negotiation creates obstacles to communicating between the parties.

Emotions are another concealed factor that normally help to assess trust. Emotions are

usually communicated through facial expressions and tone of voice rather than through verbal content (ZUCKERMAN & al., 1982). Yet, both cannot be communicated via email. Communicating via email is therefore more complicated because communicators only get part of the message that the other party intended to communicate. As a consequence, online negotiators only depend on the content, unlike in-person negotiators who benefit from the richness of face-to-face communication and receive many cues to assess to what extent they trust the other party.

Ultimately, verbal behaviors such as small talk or casual conversation, which have an

important influence on building trustful relations, are underused via email. Communication of informal information allows parties to build rapport, as they know more about each other. Notwithstanding the importance of small talk, Morris et al. find that such behavior tends to be avoided via email (2002). Parties tend to be only focused on task-relevant information. Inhibition of small talk makes it harder to build trustable relationships between the parties. Instead, relations remain superficial because they are restrained to communicating facts.

2. The tendency to misunderstand and to develop negative assumptions The lack of both verbal and nonverbal cues also leads to misunderstanding and negative assumption. Online negotiators may find it strenuous to understand what the other party is trying to say. Most of the time, these difficulties lead negotiators to assume the worst. Yet, email negotiators overlook them too often. Finally, these communication obstacles lead parties to avoid sharing their respective interests, which diminish the quality of the negotiation process.



Email communicators often overlook the fact that the recipients hardly understand the

entire message. In a study, Kruger et al. asked people to communicate statements with different emotions, such as anger, sadness or sarcasm. The statements were made via email, over the phone, or face-to-face to friends and strangers. The result was striking. Individuals, who communicated via email, overestimated the understanding of the other party, even when they communicated with a friend (KRUGER et al., 2005). Recipients have to decode the tone used in written messages without any other cues than the content. For example, the irony of a statement can be difficult to understand, if the writer did not explicitly precise the character ironic. Emotions and feeling are similarly difficult to communicate. This problem arises because email inhibits the communication of tone of voice and body language, which majorly contribute to comprehension.

Widespread misunderstanding is also explained by the fact that email collapses physical

distance. Therefore, parties seem less concerned to be well understood. They do not experience the pressure of the other as they experience it in an in-person conversation when the other does not understand an argument. What is worse, initial misunderstanding drives parties to perceive messages they have received negatively. They often choose the wrong interpretation because of the absence of face-to-face cues.

Indeed, people rely on nonverbal behavior to determine the credibility of a statement (REINHARD & SPORER, 2007). A speaker who is hesitating as he speaks would be hardly trusted. Conversely, someone who seems clear when he talks will not incite any negative assumptions regarding the information he is communicating. The anonymity of email communication, however, creates friction between parties. Negotiators are more likely to react negatively because of their misunderstanding, and it results in the use of insults to be more common via email (KIESLER & SPROULL, 1992). Isolation reduces interpersonal awareness. People are therefore less empathic, and it leads them to be sometimes more informal when they write a message. The casual communication can mislead the recipients and upsurge their negative assumptions.

The impersonal aspect of email also impedes parties from communicating their

interests. They are less likely to understand concerns of the other side because neither of them is able to emphasize their interests properly (GOODMAN, 2003) due to the absence of small talk at an early stage of the negotiation. Contrary to face-to-face meetings where the disclosure of concerns is facilitated by the flow of discussion, email negotiation has a broken flow of discussion. Parties have to wait for the response of the other instead, eliminating opportunities for the sharing of private information. Consequently, negotiators tend to focus on positions rather than on interests, even though focus on interests, need, and desire lead to more favorable outcomes. Fisher and Ury argue that seeking an agreement based on interests makes the negotiation more flexible than relying on positions that the negotiators have adopted at the early negotiation stage negotiation (1991).

Thus, email makes comprehension more difficult, especially where negotiators are not

aware of these hurdles. This tends to create negative assumptions and to undermine the



negotiation process. The different conceptions of email that negotiators have can also explain some misunderstandings.

3. Media ideology: Various understandings of how to use email Negotiators should know that each individual has different ideas of how a medium is used to communicate. These ideas shape the meaning of the message received and can impact the outcome of the negotiation.

Gershon uses the term ‘media ideology’ to illustrate the fact that communicators do not all conceive the medium they are using to communicate in the same way (2010). Although she applies her theory to describe the communication breakdown between couples, the reasoning can be extended to an analysis of a professional negotiation process: Negotiators’ ideas about a medium of communication do shape their understanding of the exchanged messages.

Each party enters into negotiation with its own set of beliefs regarding the use of email.

Negotiators’ understanding and previous experience of a medium will influence how they interpret the content of messages. For example, the current student generation perceives email as a formal way to communicate, while its professors consider email as a practical way to send messages. The latter are more flexible and consider that the extent of formality depends on how the message has been written (GERSHON, 2010). The technology used shapes the message delivered. People rely on their intuition to consider how email must be used. This has an impact on how they will interpret a message they have received.

Most of the time, the way a medium has to be used is implied between the negotiators. The first message usually, implicitly determines whether the medium, i.e. email, will be used in a formal or informal way to communicate. Media ideologies cause bias in the way individuals understand information because they expect the other party to have the same view. If one party considers email as a formal medium and the other as an informal one, the former could perceive the absence of polite salutations as a negative sign. If the parties have decided to write in a formal way, and one of the negotiators answer a quick response, such conduct can create negative assumptions and disturb the negotiation process.

More recently, the rising use of mobile technology has changed the ways negotiators interact. For instance, an individual using a smartphone to send emails will not have the same expectation as another using a computer. The use of a smartphone tends to create a more informal and shorter communication. Yet, both devices deal with the same medium, email. In addition to the various types of expectations, negotiators using different devices to communicate via email often will not devote the same amount of time on the exchanges, which can be another factor that creates friction in the negotiation process.

The differences of how email is used can diminish mutual understanding and create mistrust between the parties. Email is still relatively new, and no strong consensus has been established, though the media ideologies related to email are becoming more consistent over the time.



B) Diverse issues created by the use of technology

1. The challenge of focusing on negotiation Staying focused throughout the whole process, experienced negotiators are accustomed to devoting time to the negotiation in order to find common interests and to reach a favorable agreement. Yet, new technologies are beginning to jeopardize the ability to concentrate, posing a threat to the negotiation process.

Negotiating via email allows negotiators to carry on their own schedule. New devices such as smartphones or tablets increase this flexibility. It is henceforth common to see negotiators pursuing negotiations when they commute. Negotiators communicate with the other parties in several environments: at home, during transport, during a meeting, or while working on something else. This behavior called ‘multitasking’ is described as a burden for contemporary businessmen and businesswomen.

Although communicators think they are able to save time doing a number of tasks at the same time, they are actually only switching constantly from one task to another (ROBBINS, 2012). As a result, negotiators are often interrupted when they use a computer or smartphone to negotiate. According to Morgan, these tools create a high reliance on connectivity with others (2013); people are constantly awaiting messages. Thus, an incoming email or a text is likely to disturb the negotiator as he writes an email on a computer or a smartphone.

The consequences of the lack of concentration can be dramatic as the negotiators can easily overlook opportunities, which arise from the interaction with the other party. Given that it is harder for negotiators to be as focused as they would be during a face-to-face meeting, emails are more likely to lead to a higher misunderstanding if a message is not carefully written. The use of email requires negotiators to have a high level of willpower to avoid being distracted while they are working on a particular case.

2. Delays and postponements extending the length of the negotiation process

Email technology can dramatically increase the length of the negotiation process because of factors such as distractions, asynchrony, and distance between negotiators. Contrary to face-to-face negotiations where time is allocated regarding parties’ schedules, email negotiation allows parties to communicate at anytime. As they do not have to plan any meeting, the duration can extend, increasing the cost of the negotiation. What is worse: a longer negotiation tends to lower the chance to reach a favorable outcome.

As email negotiation does not require that they communicate in the same time slot, it is common for online negotiators to forget to establish an agenda. Yet, people tend to take more time to make decisions when they negotiate via email. The use of technology and the physical distance involved in email negotiation do not produce the same kind of pressure as an in-person meeting does. It is therefore important to find a way to create a kind of artificial pressure to encourage a steady flow of communication.



Two factors can limit the length of the negotiation process: discounting factors and deadlines (FATIMA et al., 2007). Discounting factors are external, including perishable goods, competition, and inflation. They influence the negotiation process by limiting the amount of time. Indeed, the longer the negotiation is carried out, the higher the risks that the parties do not reach an agreement. Email negotiation takes more time than face-to-face negotiation, mainly because parties are able to postpone their responses.

On the other hand, negotiators can agree on deadlines. They are essential because setting a reasonable time limit prevents negotiation from continuing indefinitely. It has been shown that deadlines do favorably affect the negotiation process and enable more positive outcome (SANDHOLM & VULKAN, 1999). Indeed, the pressure of deadlines incentivizes negotiators to propose more appropriate offers. It helps parties sacrifice superficial interests for the benefit of a shorter (and less expensive) negotiation.

The necessity to shorten the length of the negotiation process needs to be taken into account. Otherwise, the negotiation process surely risks lasting too long, affecting its outcome and cost.

3. Power imbalances bolstered by the use of technology Power imbalances may increase over online negotiations. One of the possible strategies a party can adopt is to overwhelm the other one with long emails and many documents. Such a strategy would be difficult to establish in a face-to-face meeting because both parties would waste their time. Since email is a written medium, it is cheaper to produce a lot of content. A party can send long emails and obscure documents to bury the other with work. The overwhelmed party is forced to analyze those documents because it can be harmful to miss evidence or an argument. This kind of strategy is more likely to appear when a negotiator full of resources is in a difficult position against a weaker one.

For instance, Clifford Chance has revealed this kind of strategy in Excalibur Ventures v Texas Keystone and others [2013] EWHC 4278, during the exchanges with its opponent. It has led Lord Christopher Clarke to complain about such a strategy:

I have been spared sight of much of the 5,000 pages of inter solicitor

correspondence. It is apparent to me, however, from what I have seen that some of the correspondence from Clifford Chance has been voluminous and interminable, in some circumstances highly aggressive and in others unacceptable in content [48].

As a commentator highlighted, the law firm pursued an aggressive set of allegations of

dishonesty in order to weaken its opponent (LAWYER WATCH, 2014). This strategy undeniably disables the weaker party, who is put in an uncomfortable position, being forced to allow more resources than expected to deal with the negotiation. In some cases, email negotiation can lead to magnified power imbalances. The party with the more resources can easily destabilize the other party, who will not be able to defend himself properly.



4. Email: An unsecured medium creating confidentiality concerns During negotiations, confidential information is communicated. Yet, the use of technology raises deep concerns regarding the safeguard of sensitive information and personal data. It is necessary to highlight the fact that email cannot guarantee perfect confidentiality. This lack of protection has an impact on the content exchanges between parties.

4.1 Risks for sensitive and confidential information Concerns have arisen regarding the protection of confidential material. A party can never be certain that the other will not use some information received during the negotiation process against the former (KATSCH, 1996). Indeed, email enables a record automatically created on the devices used to retrieve the messages. Then, it makes it easy for any party to print or forward information without the affected party having knowledge of it.

Parties do not have total control over their data. A court can order parties to disclose emails that are relevant to the case. Emails can be used as evidence in court and can damage a negotiator’s reputation. For instance, the case involving Apple and HarperCollins made numerous emails sent by Steve Jobs public, disclosing his competitive manner of negotiation. (APPENDIX I). Such publicity can easily undermine someone’s reputation.

Even if the parties totally trust each other, confidentiality is not guaranteed. Hacking is another factor that parties have to take into account when disclosing sensitive information via email. Emails are stored on computers, which can be hacked or stolen. In 2011, a survey of 583 IT practitioners pointed out that 90% of the companies have undermined at least one breach in their system (PONEMON, 2011). In addition, email software can be stocked on servers that do not belong to the negotiators. The rising popularity of SaaS, a cloud hosting software, raises new concerns about confidentiality of exchanged data, especially via email. Indeed, negotiators become dependent on a third party's infrastructure.

Emails do not always come from the parties involve in the negotiation, but from a third party, who was only a bystander. Email becomes a major part of evidence presented in court. Moreover, digital information can be modified. Questions arise regarding the authenticity of electronic evidence. Negotiators do not always take steps in order to ensure the reliability of email as evidence, such as encryption, digital signature, or secured storage. Therefore, false evidence can be provided to the courts. Although evidences are subject to scrutiny and the courts measure the reliability of email as evidence, it cannot be certain that the email is authentic (ROBINS, 2003). With the admissibility of digital evidence in court, it has become common to use email as evidence in lawsuits, even if it must require some precautious use.

Negotiators should be aware of these concerns. Yet, given that email is now a common medium of communication, individuals do not always worry about what they write. The increase in email exchanges and instant communication diminishes their attention regarding these issues. Email can be used as a weapon against a too talkative negotiator. Therefore, parties should ensure that they do not disclose too sensitive information.



4.2 Consequences of the lack of confidentiality in the negotiation process The lack of confidentiality can undermine the email negotiation process. In some cases, businessmen avoid sending relevant information. As the line between legal and illegal is sometimes thin, they can find it preferable to dodge any evidence of hard bargain.

Even if negotiators are cooperative, rather than competitive, confidential concerns makes it laborious for them to share interests. As emails can be admitted as evidence in court, negotiators can be reluctant to transmit confidential or sensitive information. Parties will not be willing to disclose interests that could be considered as illegal. This was the case in the negotiation between Apple and HarperCollins (SEWARD, 2013). Apple avoided explaining that its main interest was to impose a monopolistic price in order to control the whole market. Instead, Steve Jobs became more competitive in order to achieve his goal.

In summary, email negotiation lacks off-the-record discussions, in which negotiators are

more willing to share their real interests. It creates a less flexible negotiation process, and parties may tend to negotiate over positions because interests are not expressly disclosed (FISHER & URY, 1991). Instead of relying on their needs, desires, and concerns, parties risk being overly focused on their conflicting positions. As various outcomes can fulfill interests, it is necessary for the negotiators to have knowledge of the other’s interests in order to adopt the most favorable position.

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Although email negotiation is effective and commonly used, online negotiators have to cope with a number of obstacles, which are mainly due to communication concerns and issues arising from technology usage. Nevertheless, successful negotiators have learned to apply specific rules to minimize the problems they face and therefore have improved the negotiation process via email.



III – A set of rules to follow in an email negotiation process Email undoubtedly offers advantages of efficiency, even though its popularity has hidden pitfalls, which we have identified. Now, it is necessary to present and analyze how a negotiator should use email to overcome hurdles of email communication to reach a successful outcome.

Considering these hurdles, academics and professionals have been focused on creating a positive environment in order to encourage online negotiation. This so-called online dispute resolution (ODR) environment assumes that dialogical argument tools help negotiators to structure the information process (LODDER & ZELEZNIKOW, 2005). These initiatives underscore the importance of increasing the awareness of negotiators regarding the rules that they should know before entering into email negotiations. This third part focuses on the practice that disputing parties should follow when they are involved in email negotiation. These rules could also be used as the bedrock of an ODR environment.

Taking into account the wide variety of situations and the different approaches and skills of negotiators, the essay focuses on giving advice that can be universally practiced. On top of this, it is wise to take into account the circumstances, personal styles, experience, parties’ strategies, and many other variable factors. The subsequent recommendation is an effective means to improve the email negotiation process and to reach a more favorable outcome by avoiding expected hurdles.

The major obstacle that must be considered is the absence of verbal and nonverbal cues that leads to mistrust and misunderstanding. They underscore the necessity of developing relationships as a priority (A). Email also offers advantages that can enhance the negotiator’s strategy (B). Finally, negotiators can overcome the communication issues by improving the content of their messages thanks to copywriting skills (C).

A) Focus on relationships As strong rapport is hard to build via email, negotiations must create relationships before using email and find ways to build trust.

1. Establishing a relationship before negotiating Negotiators must use email after establishing prior relationships with the other party. Email should not be the default form of communication. When prior rapport cannot be built, negotiators must express positive intentions at the beginning of the online relationship.

1.1 Email: A great follow-up tool In practice, a face-to-face meeting does not immediately lead to a decision. Negotiators need time before reaching an agreement. Email can contribute immensely to the process by helping parties keep track of the on-going process.

Prior meetings help overcome mistrust. Email becomes an effective tool when parties who have already built rapport use it. Indeed, prior relationship encourages trust and



cooperation (BREWER & KRAMER, 1985). It is likely that parties who are already negotiating will not have to cope with the same issues as parties who do not know each other when starting to interact via email.

Moreover, parties willing to negotiate via email should consider starting the negotiation process with a first meeting in person, via telephone, or videoconference. Morris et al. have proven that negotiators reach better outcomes when they have had a phone call before the start of negotiations. In the study, a 5-minute phone call had impressive effects on the result (2002). Therefore, a first meeting should not be avoided. It is actually a good opportunity for negotiators to observe behavior and body language and to assess one another’s personality. In other words, negotiators’ first impression will be more accurate because they will be able to rely on more information.

During the negotiation with HarperCollins, Apple’s emails illustrate the use of email as a follow-up after initial exchanges, which took place between the negotiators (SEWARD, 2013). In addition, both CEOs tacitly agreed on the fact that, even if email is a cost-saving medium, a first meeting was still necessary.

Even if the parties do not share good social rapport, the simple fact that they know each

other increases cooperation between them. It has been shown that cases involving lawyers who know each other prior to hearings are resolved more quickly (JOHNSTON & WALDFOGEL, 2002). Parties should therefore be encouraged to establish prior relationships before starting the email negotiation.

A preliminary phone call or a first face-to-face meeting are excellent ways to build a strong basis of trust. Email is also a powerful follow-up tool that can be used to pursue unfinished face-to-face negotiations. Thus, email negotiation should be reserved for relationships that already exist or, if it is not possible, negotiators should start with a face-to-face meeting or a phone call.

1.2 Email: Not a medium to use by default Most of the time, negotiators use email as a medium of communication without having thought about whether or not it will improve the negotiation process. In the light of the numerous hurdles negotiators have to face, it should be advised that the decision to use email as a means of negotiation should be first discussed with the other party.

According to Guliver’s developmental model, the negotiation process is structured in eight steps (1979). These steps have been summarized in three broad phases: initiation, problem-solving, and resolution (HOLMES, 1992). Prior to negotiating, negotiators must agree on an arena, namely, which medium they will use to communicate. Unfortunately, parties often overlook this step, and email negotiation is chosen by default as a medium. To the contrary, the negotiation process would be improved if negotiators would agree to go through the initiation phase more formally. Even this early phase of negotiation has a considerable impact on the final outcome.



The nature of the relationship between the parties is a main factor that helps to determine whether they can choose the medium they will use. There are such circumstances where the dispute is so deep that one of the parties is reluctant to reach an agreement that suits both interests. In this case, the parties must exert much more effort in order to avoid breaking communication. Here, email can be a wise way of pursuing negotiation in a less tense fashion than in face-to-face meetings.

1.3 The power of expressing positive intentions at the early stage of email negotiation

Expressing positive intention and stating open-mindedness regarding the outcome have powerful effects on the result of the negotiation process.

Although a prior relation between the parties must be encouraged, in some circumstances email has to be used to make initial contact because the parties have had no prior relationship. This range of cases includes e-commerce and intellectual property disputes as well as international disputes (SHAH, 2004). For example, in disputes relating to issues of intellectual property, lawyers are accustomed to emailing the party, who is allegedly misusing the brand of their clients. Such first contact can understandably create a negative relation between the parties.

Ury argued in the Power of Positive No that, even if the message is not satisfactory for the other party, a negotiator should stay positive in the way he or she puts his or her intention in words (2007). Taking this advice into account, a negotiator should adopt the following framework: start with a positive message, state the displeasing information and finish with another positive message. By surrounding the dissatisfying information with positive content, the negotiator will be able to encourage a positive reaction from the other party and gain their trust.

In order to minimize the hurdles of email negotiation, negotiators should express positive intentions more often.

2. Emphasis on building trust The major issue negotiators have to face when negotiating via email is the lack of trust. It is therefore essential to find means to build trust and be aware of all issues regarding trust.

2.1 Pre-negotiation as well as post-negotiation The first impression provided during the early stages of negotiation is particularly important. Negotiators must be aware that while the level of pre-negotiation trust is decisive for the outcome of the negotiation, the post-negotiation trust has a large impact on the performance of the agreement (NAQUIN & PAULSO, 2003). Even if the level of trust was high during the negotiation, a drop in the confidence between the parties can damage the relationships and prevent them from performing their respective obligations.



Therefore, in order to increase or maintain the post-negotiation trust, it is important to continue online relations after reaching an agreement. This so-called ‘aftercare’, well known among marketers, has a striking effect on satisfaction and, as a consequence, on the trust between the parties (WARD & DARACH, 1996). It will encourage the parties to perform their obligations and can induce them to reach new agreements. The challenge each party encounters is to give a favorable impression to the other party. The parties should not be focused only on the success of a first in-person meeting, but should also demonstrate how trustworthy they are during the whole negotiation process. It is important for each party to be aware of the other’s willingness to reach a win-win outcome.

2.2 Honest disclosure & small talk Email makes it hard to communicate in a casual way and to build friendly professional relationships. Small talk, which is not task-related, is a powerful means to creating links among negotiators. As they are not natural via email, negotiators should try encouraging them in order to build trustful rapport.

Honest disclosures, such as the revelation of one’s alternatives or communication of private information, result in a more cooperative negotiation. Indeed, Paese et al. point out that honest disclosures have a positive effect because it creates trust between the parties. The other parties, therefore, tend to make less demanding offers and to be less competitive (2002). In addition, their comparative experiment shows that the effect of honest disclosure is stronger via email than in face-to-face meetings. Small talk, a familiar and less formal exchange is effective in earning each other’s trust.

2.3. Expression of emotions

Expressing positive emotions as much as possible (e.g. excitement, empathy) can help build trust. Negotiators should also keep in mind that he or she should remain authentic, namely to act as he or she should naturally do in face-to-face meetings.

As it is easier to communication unpleasant information via email, negotiators need to be careful regarding the way they put it into words. Parties often do not realize that this distance makes them more comfortable with exchanging irritating information (BORDONE, 1998). Therefore, expressing emotions, such as worry or concern, can also diminish the lack of trust that will follow an unpleasant statement.

B) Seize email assets

1. Keeping a tight negotiation agenda by establishing deadlines As email presents an asynchronous feature, the delay between each interaction can cause the negotiation to last longer than a face-to-face negotiation. This phenomenon not only upsurges the negotiation costs, but it also reduces the odds of reaching a favorable outcome. Thus, negotiators should limit the length of negotiation.



Even if the negotiator decides to postpone his or her answer, he or she should respect an agenda. Indeed, keeping a short negotiation increases the chance of reaching an agreement. Studies on online dispute resolution (ODR) show that websites, which create ODR systems, narrow the length of negotiation time either by limiting the number of rounds of bidding or by allowing a specified period of time (GOODMAN, 2003). The purpose of narrowing the duration is to encourage faster and more constructive interaction between the disputing parties.

Two factors can limit the length of the negotiation process: discounting factors and deadlines (FATIMA et al., 2007). Discounting factors are the external element. Perishable goods, competition, and inflation are part of these. They influence the negotiation process by limiting the amount of time. Indeed, the longer the negotiation is carried on, the higher are the risks that the value of the outcome diminishes. Email negotiation takes more time than face-to-face negotiation, mostly because parties are able to postpone their responses.

On the other hand, negotiators can agree on deadlines, which are the internal element. They are essential because it prevents negotiation from going on indefinitely by setting a reasonable time limit. Sandholm and Vulkan illustrate that deadlines favorably affect the negotiation process in that negotiators who set deadlines reach more positive outcomes (1999). In fact, negotiators often assess the other’s side’s reaction to the deadline they have set. The other side’s response aids the first party in determining the priorities of the other party and their willingness to make sacrifices to meet mutual interests.

Ultimately, negotiators should rely on time-limited stages of negotiation. Keeping a high rate of exchange is a good way to improve the outcome. It keeps the parties involved in the negotiation process. If the parties are too detached, the willingness to reach an agreement will not be as strong.

2. Intelligent usage of the multi-issue advantages of email More and more complex cases are settled thanks to negotiation. These cases often involve many correlated issues, which can be laborious to discuss in an in-person meeting. Fortunately, email offers an effective alternative to deal with numerous issues at the same time.

Negotiators can use the multi-issue-propositions advantage of email to enhance the negotiation process. Indeed, Medvec and Galinsky highlight that the presentation of several offers at the same time can be a good strategy in negotiations (2005). By offering several alternatives to the other party, a negotiator improves the chance of meeting the other’s interests. The parties are more likely to be creative and to deal with several issues at the same time rather than moving on an issue-by-issue basis. As email makes it easy to enumerate propositions with interruption, negotiators should embrace this kind of strategy.

However, negotiators must be aware that giving too much choice can have a negative effect on the negotiation process. Several options do lead to more favorable outcomes, but too many alternatives will have the opposite effect, i.e. it will decrease effectiveness of the multi-issue proposition (SCHWARTZ, 2004). Parties can therefore relate various issues together, which is less likely to happen in a face-to-face negotiation.



Finally, some negotiations require meetings. In such circumstances, this paper recommends focusing face-to-face meetings on the main issues or discussing the most difficult points after a pre-negotiation via email. The aim is to take advantage of the assets of both ways of negotiating. On the one hand, email enables parties to plan and highlight common interests by analyzing multi-issue propositions. On the other hand, in-person meeting help the parties to build trust and to develop major issues.

3. Postponement of responses to avoid emotional answers Negotiators should not be emotionally involved or should at least control their emotions. A negotiator who becomes emotional increases the risk of making bad decisions and can allow the other parties to play with his or her emotions. Fortunately, email can be used to reduce the negative impact of emotions.

The asynchronous nature of email enables parties to postpone their responses. When

one is emotionally affected because of unexpected and unpleasant information, one should postpone the response in order to avoid involving emotions in the negotiation process. Furthermore, parties can communicate with more confidence without intimidation from a famous or seasoned negotiator. Negotiations are more factual rather than based on emotions (BARSNESS & BHAPPU, 2004). Therefore, an emotional or sensitive negotiator is able to organize his or her arguments without any kind of interruption.

‘Flaming’, the hostile communication of emotion, sometimes takes place within email negotiation. It is often created by anger directed toward other parties as a result from circumstances in which one party thinks the other unfair. Controlling one’s anger is the right answer to flaming (JOHNSON, COOPER & CHIN, 2009). In order to do so, the negotiators can benefit from the asynchronous advantage of email negotiation to postpone a reply. It helps to put things into perspective and to be less emotionally involved. A good way to apply this piece of advice is to read messages carefully to avoid any misinterpretation. To make it read by someone else is another good means to avoid misunderstanding. Then, the negotiator should wait a day before writing a draft a reply.

More likely to arise in face-to-face meetings, negotiators should avoid impulsive

responses; unlike meetings, email gives the opportunity to do so. A good way to use email is therefore to write a draft, to wait, and eventually to amend it before sending it to the other party.

C) Focusing on the content to be understood Since it more difficult to be understood over email, negotiators must take extra care to ensure that they are conveying unmistakable content. Following copywriting techniques, which enhance the clarity of messages, is a valuable way to make it easier to be understood. Emoticons are another practical use of the content to express one’s emotion and make the message clearer.

1. Effective use of copywriting techniques



As in on-table negotiation, email negotiation necessitates communication skills. Exchange written information with accuracy requires specific skills. Yet, most of the time, negotiators have only been trained in in-person negotiation. Students and professionals often only practice face-to-face communication, as if email negotiation, now a major part of information exchanges, does not have to be learnt.

Academics have overlooked the practical set of rules online negotiators should follow. Most of these rules can therefore be found in copywriting and marketing literature. Let us take advice from copywriters and direct marketers who are expert in delivering accurate information via e-mailing.

1.1 Subject lines The subject line of an email is important. It includes the first words that the recipient will read and will determine whether the email will be opened. It will also determine the state of mind of the recipient when he or she will read the message. For example, a negative subject line will make the recipient more suspicious and will increase the odds of negative assumptions.

The subject line must be considered as the outer envelope of the message. Negotiators have just a few characters to influence the other party positively (MALSEN, 2009). Malsen recommends writing the message first. Then, the subject line will be easier to write as a summary of the message. The main point is to attract positive attention from the other party.

The subject line must also be specific in order to get the attention of the other party. Indeed, individuals receive more and more emails. Even if the stakes are high, emails can be overlooked because of a high number of emails in an inbox.

1.2 Message body Given that online negotiators only rely on the content, the message body represents the central part of the communication. Online negotiators should be encouraged to choose the words they use wisely.

Copywriters advise to take the decreasing attention of the reader into account. Thus, a negotiator should write the key statements in the first paragraphs (BLY, 2006). The more one reads, the more one’s attention drops. It is thus recommended to keep paragraphs short.

Moreover, each message has its own purpose. A negotiator should ask for specific actions and be precise on what one wants from the other party.

It is unfortunate that negotiators are not properly taught how to lead a written

negotiation. Nevertheless, by following this advice, email negotiators should find the process easier and more fruitful.

2. Wise use of emoticons



Depending on the context of the negotiation, emoticons, a pictorial representation of a facial expression, can be a useful way to communicate one’s emotions. Certainly, emoticons are usually inappropriate in professional situations. Nevertheless, they can still be used in negotiations among employees of the same company or where parties have already built strong social rapport.

The use of emoticons has constantly increased. The main reason of its popularity is its ability to convey the author’s emotion in a digitally written message. Indeed, emoticons have a positive impact on conversations because they help to overcome the loss of nonverbal cues in computer-mediated communication (REZABEK & COCHENOIR, 1998). In other words, emoticons enable each side to understand the other’s emotions and personality more. In the same way, emoticons affect emotions that the recipient feels as he or she reads a message (D’ADDARIO, W. 2001). Given this ability to convey emotions and to overcome the lack of nonverbal cues, emoticons should be used in negotiations via email where this casual expression is appropriate.

The use of emoticons is likely to continue growing. Teenagers and the Y generation commonly use emoticons (DEINTINIS et al., 2012), and these individuals represent the next working generations. Furthermore, these new generations have always used both email and instant messengers to communicate. It seems likely that their experience will shape new ways to negotiate via email.

* * * This essay has explained why email negotiation is popular among negotiators. It has also emphasized that negotiators must be aware of the issues involved in communicating via email, which can severely damage relations between parties. However, this essay has demonstrated that following a certain protocol helps to improve communication between parties and to deal with these hurdles.

Respecting this protocol allows email to be an effective way of improving the

negotiation process. When circumstances impede adherence to these guidelines, negotiators should seek alternatives. Morris et al. propose the use of the synchronous feature of instant messenger that would lead to more fluid long-distance information exchange (2002). If a face-to-face meeting is not possible, negotiators can use other synchronous online solutions, such as video conferencing or telephone.

It is important to remember that, as much as these recommendations are wise to follow, simply following them will not attain an online negotiator’s expected outcome. Indeed, the negotiation process involves many variables, which means that each negotiation is unique and dependent upon the context. Therefore, being a good email negotiator not only requires knowing and practicing these rules, but it also demands hard work, good preparation, practice, and creativity.

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APPENDIX I Please go to https://www.documentcloud.org/documents/702951-email-exchange-between-steve-jobs-and-james.html Court document: Twelve pages of emails exchanged between Apple and HarperCollins.

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