By Geoff Sharp (2001)

Negotiating electronically

With some American studies concluding that the whole e-mail dynamic makes it much more difficult to negotiate (comparing e-mail, telephone and face-to-face negotiations it was found that 50 % of e-mail negotiations are not successful whereas only 19% of face-to-face negotiations end unsuccessfully)…. why would we want to negotiate through e-mail at all?

Well for one thing, you can avoid travel, organising meetings, telephone tag and all the other costs associated with having to talk to someone.

The other thing is that e-mail is an asynchronous medium so you can communicate when you feel comfortable communicating - you don't have to rush a response, as you would do when conversing in real time. You have the luxury of being able to fully develop your position before responding. For instance you can access legal information in a way that you are not able to do in a face-to-face meeting.

It seems that email negotiation works best when you have already established a rapport with the other person. So, that would mean an e-mail negotiation might have a better chance of success if you are negotiating with a colleague who you know and have dealt with before in a face-to-face environment. This is self-evident when you consider that when people meet in person they chat a little, they drink coffee and they make some small talk. They try to find some common social ground that makes the negotiation proceed more smoothly but with e-mail there are no social norms or expectations and the tendency is to cut right to the chase.

There is now some really exciting NZ software around called "Silent One” which allows a law firm to set up "a drafting room" or, as the UK firms have called it “a dealing room”.

Authorised people involved in the negotiation (for instance, a commercial contract negotiation) are then given access to this virtual negotiation room and the documentation being worked on in it, all with the system tracking what and who is making the amendments.

The drafting room is available to anyone whether they are working from their office or in transit at Singapore airport. So for instance, lawyers (and clients) can access the documentation and carry on the negotiation, and more importantly from a legal perspective, can carry on the minutiae of the wordsmithing/drafting negotiation at any time of the day or night from anywhere in this increasingly small global village.

Mediation 'online'

What does this mean? Well, it can mean a couple of things.

One end of the spectrum of online dispute resolution is inhabited by websites like Clicknsettle (www.clicknsettle.com ) or Settlesmart (www.settlesmart.com ).

These are simple blind bidding sites that allow the parties to submit financial offers without the amount of the offer being revealed to the other party. Parties usually have three "rounds" of bidding and when an offer is within an agreed range (say $5,000) the computer congratulates the parties and advises them that they have settled their claim. These bidding sites seem to be used for smallish dollar claims and appear to be acceptable in the USA but nowhere else.

Of more interest is what I suspect most of us would think of as on line mediation, that is, mediators using interest based bargaining assisted by communicating over the Internet.

We are at the very start of our experience with on-line mediation. However there has already been much thought about the pros and cons of mediating over the net.

Some of the on-line advantages include:

• • On-line mediation allows the parties to move out of real-time discussion to asynchrony. Some say that real time face-to-face meetings have historically resulted in single day sessions with all participants/lawyers present. That, in turn, led to difficulties in scheduling, cost and "battle mentality" resulting in a crisis like environment.
• • On the other hand, on-line mediation allows an evolving process that moves beyond one-off, crisis meetings and allows the participants to engage in a reflective discussion at their convenience.
• • Supporters of on-line mediation see advantages in parties being able to compose their thoughts slowly and say parties often welcome the opportunity to express themselves without needing to compete for airtime and without having to hear their own voice.
• • There are also the spin-off advantages of having a complete record of the mediation.
• • Participants may be able to access legal information more easily.
• • In cases like custody matters, it may help educate the parties in a new way of communicating that will be helpful for their future communications about the best needs of their children.

The downside is what you might expect and includes:

• • The absence of any ability for the mediator to read emotional cues - for example how do you read someone's emotional state online? Some say this is an advantage-the emotional and physical distance can work.
• • Identity issues - how can we be sure that people are who they say they are?
• • Power imbalance issues - these may be difficult to identify, let alone deal with online
• • Resource issues - not everybody has access to the net and, if they do, most of them are male.
• • Skills issues - even if participants have access, how comfortable are they on the net, or with word-processing as a means of communication?
• • Reality testing takes on a new meaning-it’s often hard to do good work in this area online
• • Privacy/confidentiality issues-is the net secure enough-especially if the mediator is networked?
• • And while on-line mediation ‘allows the participants to engage in a reflective discussion at their convenience, it can also extend the time over which the mediation takes place.

Check out examples of this type of online mediation at Online Mediators and Internet Neutral

At least in the short term, online mediation will involve using the Internet in combination with the telephone and traditional mediation meeting. If you would like to find out more go to an article called 'Mediating on the Internet'

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