Thanks to the pandemic, Online Dispute Resolution (ODR) seems to be the ONLY way to resolve conflicts these days. The notion of an in-person mediation is just not safe. While most folks read “ODR” to reference video conferencing, it does also include e mail and all other forms of asynchronous communication such as the telephone and facsimile.

An important part of communication is body language. Indeed, according to a study by Professor Mehrabian, approximately 93 percent of our communication is non-verbal consisting of 55 percent in body language and 38 percent in tone of voice, while the remaining 7 percent is verbal. ( The 7% Rule Fact, Fiction or Misunderstanding.)

This means that in an asynchronous communication such as e mail, we are not able to assess about 93 percent of what is being communicated. We only pick up the 7 percent in the form of the written word. And, this is indeed a pitfall.

A recent blog post on PONS entitled “The Pitfalls of Negotiations over Email” points out the deficits of negotiating by email.  Written by the staff on September 14, 2020, the post notes that unlike what may happen in a synchronous communication, it is difficult to establish a relationship, rapport or trust with the parties in an email exchange. There are no verbal cues and an email may be easily misunderstood because a party may mistake the tone and emotion of the email. And frequently, the recipient of an email may not necessarily take a moment and look at the email from the perspective of the sender. (Id.)

The pitfalls of engaging in negotiation by e mail was shown in a study by Justin Kruger of New York University, Nicholas Epley of the University of Chicago, and Justin Parker and Zhi-Wen Hg of the University of Illinois at Urbana-Champaign. These researchers “…asked individuals to communicate a series of statements with sarcasm, seriousness, anger, or sadness to either a friend or a stranger via e mail, over phone or face to face.” (Id.)

The study found that:

Individuals generally overestimated how accurately their recipients would decode their tone, regardless of whether the other person was a friend or a stranger, but this deficiency was particularly strong with email. As a result, email often decreases information exchange, thereby leading to an impasse and inefficient agreements compared with negotiations conducted in person. (Id.)

So, while e mail and telephone are critical to our ability to communicate in these times of a pandemic, much may “get lost in the translation.” So, be aware of these limitations and before assuming that the email conveys anger or sarcasm, take a moment and check with the sender about the tone that was meant; did the sender really mean for it to sound angry or laced with sarcasm? It is always better to ask than to assume and will prevent impasse and perhaps even lead to a settlement.

… Just something to think about.





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