Negotiating in the Dark, i.e., by e-Mail Alone

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I thought I’d deviate from ruminating about nuts & bolts and digress into “process.” What happened to the telephone? Does anyone think that discussions by email are always more efficient or effective, that they really Get The Deal Done better, faster, and cheaper?

I’m not talking about effective and efficient transfers of information. I’m talking about the interactive negotiation process. Using email to negotiate complicated matters is like playing tennis in total darkness. You don’t know where to aim the ball, but you hit it over the net (if you can) anyway. The return can’t be seen, you only hear it bounce. That’s email for complicated issues.

When you play tennis in the sunlight, you can see your opponent’s position and stance. That lets you choose from a much smaller number of possible shots. You can respond to your opponent’s returns. The result is that you volley. You play the game together. That’s the telephone approach.

In the dark, you hit the ball and your opponent misses it – a point for you. Love, 15, 30, 40, game. You win. Sounds great, right? Now, your opponent gets to serve. You can’t see the ball. Love, 15,30, 40, game. Now you lose.

Yes, back and forth – back and forth.

Let me digress. What made me think to write this Blog entry at this time? Well, I was in a Starbucks and across from me was a table of four friends. (I think they were friends – you decide). Were they talking to each other? No. Each of the four was texting (or emailing). So, did they satisfy their joint mission which certainly included being together? I don’t know. You’ve all witnessed such a scene, but do we realize that we are doing the same thing when we negotiate these days?

Negotiation is an interactive process. You pick up on cues. It is analog – you adjust to what you hear. It isn’t digital – perfect statements, each within own channel.

Don’t get me wrong. Electronics have transformed our businesses, mostly for the better. My key message, however, is “mostly.”

Isn’t it ironic? There would be no way for me to share these thoughts as broadly were it not for email and email-like means. Yet, in doing so, I’m begging for a “conversation.” Aren’t I being hypocritical? Here’s my rationalization. Jack has a hammer. Linda has a toolbox. Jack fixes everything with the hammer. Linda chooses from her toolbox wisely, sometimes using a hammer and sometimes using a saw. Sometime using email, and sometimes using the telephone, whichever tool works best.

Let me hear from you. You can phone me. Post your comments to the Ruminations Blog at

N.B. After writing this, I came across this quote from a Bankruptcy judge criticizing an attorney appearing before her: “[M]uch of the time spent on motion papers could more efficiently and productively have been spent on the telephone with opposing counsel… .” So, the problem is not ours alone.



  1. I wonder if the same debate was happening over the invention of the telephone and the resulting decline of “face to face” negotiations. The argument was probably as valid then as it is now. Interpersonal relationships are morphing into a series of emails, pdf attachements, and Excel spreadsheets. It’s truely a skill to learn to manage this system and be successful without letting technology negotiate for you.

  2. I find that I’m better negotiating by email because
    I can read / edit what I say before sending it and
    I can’t get intimidated as easily. My points are more
    thoughtful and precise using email as I’m a better
    writer than speaker. Just me.

  3. I can well understand the tendency to communicate via the written word…there is an easy tendency to view it as more precise. However communication includes so many non-verbal and even more non-written signals, that people can easily mis-read the most simple and clear communication you can think of. You would not think it possible to misunderstand some of the phrases that people will swear meant something else, but as lawyers we run into it all too often. Good post!

  4. I view negotiation by e-mail as a faster version of negotiation by “snail mail”, which has been around for longer than any of us has been alive. As to the best means of negotation to use (face-to-face vs. telephone vs. e-mail/snail mail), that depends on the situation, your goal and the negotiator on the other side. Sometimes, I prefer e-mail when I want to explain my reasoning for a proposal without interruption, when an adversary is difficult to reach (due to circumstances or as a passive-aggressive negotiation tactic), when my schedule makes telephone calls during normal business hours difficult, or when an adversary’s negotiating style makes true negotiation difficult (e.g., the person who thinks that constantly repeating his/her point at increasingly louder volumes is effective negotiation).

    Good food for thought, Ira!

  5. David Huprich says

    I agree. The art of negotiation has deteriorated from face-to-face to phone to email. Great to avoid the time and cost of travel to negotating meetings, and it feels good to hit the ball back with an email. It also avoids the stress of having to thrust and defend on the spot, but it doesn’t get the deal done nearly as fast, if at all, as direct contact. Time is the killer of deals. The siege email approach has its place, but it consumes too much time if the deal needs to get done pronto. Maybe Skype is the way to go (I have no ownership interest in Skype).

  6. I agree with the comments above. I think email definitely has a place, but I am also old enough to remember traveling to negotiate a lease or loan documents. The parties would sit around the table and negotiate the documents~sometimes quite a bit of tension would build up in the room~then, someone would roll lunch in and negotiations would be put on hold. The parties would move to the other end of the table (so as not to spill on documents) and over lunch, discuss their families, their vacations, their hobbies, anything other than the deal at hand. Lunch would end, parties would move back to the negotiating end of the table, tensions would be reduced and negotiations would continue. Some were successful, others not so much, but the parties were likely to be more respectful and less prone to posture after having gotten to know their opponents. This type of getting acquainted still takes place over the telephone, albeit to a lesser extent. Not so much with email. There is also more of a chance of misunderstanding via email than during a phone call and certainly more than during a face to fact meeting.

  7. Mary Ann Gdula says

    Good for you, Maureen! In my world, there’s nothing like the telephone…how people SOUND is just as, if not more important than the content of their communications, whether legal negotiations or anything else.

  8. Nicole Paul says

    I much prefer negotiating by phone. I was never a huge fan of the face to face negotiating – but at times I still think they are fun.

    I don’t mind sending drafts by email. I don’t mind sending certain provisions or language by email. I don’t really understand how you would negotiate by email. Tones can be misunderstood. There isn’t the instant feedback when one party explains why they want or need or can’t do something. There isn’t any way to garner an understanding of the other party through email. Perhaps technical details can be worked out; i.e. there is a typo in provision 4. Subtleties I think would be lost.

  9. James Caporrino says

    I’m a little late to the party, and, maybe this one’s over. But…I represent both tenants and landlords. I generally substantially revise the onerous leases I get from landlords and then ask counsel to call me to discuss the issues of disagreement. I find that some attorneys don’t even understand all of the provisions of their own leases and can’t justify their positions when push comes to shove. You simply cannot know who your negotiating partner is via e-mail alone.

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