In the 21st century, we have an opportunity to do everything quickly and efficiently. It took only one century for mankind to eradicate what we would now call anachronistic ways of communication (including horses as messengers or best-case scenario delivery of telegraphs through trains), into e-mail, text messaging, or phone communication that take less than one minute to complete. How did this affect traditional face-to-face negotiation? With time restrictions, busy schedules, and distance, people have turned to phones and computers to negotiate rather than conducting face-to-face negotiations. This is especially the case for people who have time constraints and for those who have to reach settlements or sign contracts when they are states or even countries apart from one another. Anyone would agree that technology is a great advantage today. But is it really?

One major advantage of email negotiations is cost. The 21st century mortal does not have to spend money traveling to another location to carry out a negotiation. The cost reduction is even greater for cases involving multiple parties. The cost of conference calls is even more reduced if not completely eliminated with advanced technologies such as Skype, Google Talk, or Face Time. In addition, both telephone and e-mail negotiations are pragmatic forms of communications. They pose no obstacle as to distance. Deals can be struck at anytime, anywhere.

While email and telephone negotiations have their advantages, they also pose some issues, which are not so advantageous. The three communication channels are: visual (sight), auditory (sound), and kinesthetic (touch, taste, smell, and feelings). All three are found in face-to-face negotiation, but this is not the case when communicating with telephone or email. Telephone does contain auditory elements, but it lacks visual and kinesthetic ones. Email lacks all three forms of communication. This goes to show that face-to-face communication gives people the opportunity to express themselves through three channels of communication. Therefore, face-to-face negotiation has advantages that negotiating through email and telephones do not.

What about emotions or identity? Not only is it easier to feign emotions through email or the telephone with the absence of body language, telephone and e-negotiations also pose a problem of authority and identity. “When negotiators are sitting across a real table in a room together, there may be some questions of identity or authority, but there is a real person with whom one interacts. Online, identity concerns are legitimate concerns. How do I know you are who you say you are? How do I know who is being allowed to see the information I’m sending or posting? Even the use of passwords does not remove this concern.” Therefore, parties in an e-negotiation and telephone negotiation can easily dissimulate both about the case and themselves. The other side is not there to see the speaker’s facial gestures and hear the tone of his/her voice.

As a result of not seeing and hearing in e-negotiations, there is great potential for misunderstandings between parties. This is less so in telephone negotiations since the person is on the line and is having a real life conversation and can explain herself if a misunderstanding comes up. However, it is extremely problematic in e-negotiations. For example, in an email a party may ask a few questions in the initial email to try and get to know who the other side is. While the initiator’s intent is to build rapport, the other side may find this as coming off too aggressively and asking for too much right off the bat. However, if the person had a chance to have face-to-face contact and ask questions after shaking hands, the likelihood of a misunderstanding would be diminished.

A major hurdle telephone and e-mail negotiations place upon the parties is to maintain confidentiality. This is especially true in email negotiations where everything that is said is recorded. Not only do parties have to be careful about what they send, but they also have to determine how to maintain confidentiality. “Everyone close to a negotiation should be careful to take a moment before clicking ‘send,’ especially when a message has sensitive contents, as well as double-checking who is in the recipients list. Some matters of strategy should not be discussed by e-mail at all, or even reduced to any kind of writing. They should be handled face to face. That is the best way to maintain confidentiality.” Once a negotiator chooses e-negotiation, she basically gives up the opportunity to bring and discuss sensitive information that would be helpful for a favorable bargain. Therefore, even when utilizing email negotiations, it is clear that face-to-face negotiation is the best and possibly the only way to maintain confidentiality.

One of the most important if not the most important skill to have in any negotiation or other form of dispute resolution is building relationships. These relationships form the foundation for resolving a dispute. Any negotiation begins with building rapport and working increasingly to build a solid relationship, which works towards reaching an agreement with the other side. The problem with telephone and email negotiations is how to build such relationships without any face-to-face contact. Building trust, although considered necessary in reaching an agreement that all parties are satisfied with, becomes a major problem when using email negotiations. Although it is not impossible to build a relationship online, it is a challenging process when there is a lack of face-to-face contact.

Furthermore, it is an even bigger challenge to build trust in a new relationship. Trust is built in the very first contact between the parties. While face-to-face negotiators can engage in “small talk,” this is difficult to accomplish in email negotiations. There are certain situations where email negotiations lose some or all of their value. One example is in the context of negotiating in a cross-cultural setting. In this type of negotiation, face-to-face contact is of upmost importance. First, the development of trust is established through contact with someone who is a complete stranger, but also someone who is from a completely different culture. Utilizing proper tone and a cooperative approach through email would be more difficult to establish if the other side is from a different culture. Based on gender, socioeconomics, cultural, and racial considerations, people attach different meanings to different words. This conveys the disparity of meanings different people attach to different words. It also points out the importance of really understanding one another and making sure everyone is on the same page before and during any negotiation. The experience becomes a limiting one. It is limiting because the technology poses a barrier to building trust, to using tone and body language, to brainstorming, and to understanding one another.

Notwithstanding the advance of technology, let’s agree that face-to face meetings are not unnecessary. Quite the contrary, face-to-face meetings and negotiations are even more important today than ever. Human interaction and personal contact are integral in a negotiation. Therefore, the only way that this can be achieved is through a face-to-face negotiation.

by Anahit Danielyan
The ABA Guide to International Business Negotiations, Aresty Jeffrey M., Klosek, Jacqueline, Silkenat, James R., (Eds.) (2009) at 223.
Id. at 109.
Id. at 96.

Anahit Danielyan has received her Master of Laws in Dispute Resolution at the Straus Institute of Pepperdine University School of Law. She obtained her first law degree in Armenia where she is a certified attorney. Anahit now lives and practices in Southern California. Her diverse heritage, education, and training allow her to effectively communicate with varying types of personality and understand their priorities.