In recent years, much has been made of the fact that we are living in the digital age: we are tethered to our smartphones, iPad, laptops and other devices and are heavily dependent on them. Much like Pavlov’s dogs, whenever our smartphone beeps, vibrates, rings et cetera, we check it to see why.  Sometimes, we check it anyway, just to see if a new message has arrived (i.e., to make sure we have not missed anything!)

No one would disagree that technology is changing rapidly. According to Moore’s law, the number of transistors on computer processing chips double every two years. More specifically- think about your life time. As a baby boomer growing up- television was a black and white novelty in my house. When it changed to color television, that was really something. To make copies of letters, we used carbon paper in the old fashioned typewriter. Telephones were unique as well. Then along came an IBM computer that took up the whole room. … And today, your smart phone has more computing power than that IBM filling up the whole room. (To gain a true appreciation- see the movie Hidden Figures in which the NASA employees did all of the calculations by hand for John Glenn’s three orbits around the earth!)

In short, technology has drastically changed the world over the last few decades. But, ironically, the more digitally connected we are to the world, the more isolated we have become. No doubt, you have seen this- a couple or some friends sitting at a table in a restaurant, oblivious to each other because they are focused on their smartphones using text messages, Facebook, Snapchat, Instagram et cetera. They are not conversing with each other but rather telling the world where they are and what a great time they are having.

I address these issues because of a preliminary draft of an article I read by Noam Ebner entitled Negotiation is Changing (Ebner, Noam, Negotiation is Changing (2017). Journal of Dispute Resolution, Vol. 2017, No. 1. Available at SSRN: ). He suggests that because of all of this technology, the way we negotiate has changed as well. He specifically points to three areas: our attention spans, our ability to empathize and our ability to gain trust.

After a moment of reflection, one realizes that to negotiate well, one must maintain focus and pay attention for more than a few nanoseconds to what the other party is saying. Active listening must be used as well as a lot of give and take.

But, with our constant “need” to check (or to respond to) our phones, or to otherwise multitask, our attention spans dwindle down to nanoseconds. (Studies have shown that multitasking is actually a very inefficient way to do anything. We are much more efficient and productive doing one thing at a time!) We are no longer thoughtful listeners, using 100 percent of our attention on what the other is saying. Rather, we are “in and out” of the negotiation. Consequently, we may miss a few key points or statements and thus not be as effective as we can be.  As a result, we may well leave “some money on the table” at the end of the negotiation. (Id. at 42-44.)

The second downside to our digital age is the lack of face to face interaction with others. (Take my example of a couple sitting across from each other, focusing on their phones and not each other.) The majority of our communication is non-verbal either through our body language (55%) or tone of voice (38%). Our actual words make up only about 7% of our communication. Consequently, if we “interact” without looking at each other, we do not “read” the body language and do not learn the cues to realize when someone is upset, frustrated, angry, in pain, or any other emotion. Without the ability to read these cues, we do not have the ability to learn empathy. But, to be a good negotiator, we need to be able to look at the issue from the other person’s perspective; to “feel her pain”, so to speak. To appreciate emotionally, the trauma, frustration, anger et cetera that the other person is undergoing, so that we can have that “ah-hah” moment of understanding her needs and interests and finding the common ground that will resolve the matter. But, sitting across the table focusing on posting to Facebook will not accomplish this.  Yet, this is what the digital age has wrought. (Id. at 45-46).

The last is perhaps the most important: trust. To resolve a dispute with another party, there must be a certain degree of trust among the parties. As a mediator, one of the first things I must do is to build a trust relationship with each of the parties. Without that, neither party will listen to me much less settle the dispute. Yet without the human interaction discussed above, it is difficult to build this trust. Moreover, thanks to all of our modern technology, it much easier to erode that “trust” in another through the use of “fake news”, tweets, reviews by others on various websites such as Yelp. The 2016 presidential election highlights how much “trust” plays in any negotiation. (After all, weren’t the nominees “negotiating” with the electorate for the job of President? And wasn’t “trust” a very big issue?)   (Id. at 46-50.)

So, while we may think that the art of negotiation has not changed, the author’s thesis is that, indeed, it has, very subtlety yet profoundly changed, due to our advances in technology.

… Just something to think about.



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