Small Talking Your Way to Success: The Impact of Rapport Building on E-mail Negotiations

Posted By Josephine Lee, Oct 22, 2013

There’s simply no denying it; the times they are a-changin’. One of the new realities is that face-to-face communication is rapidly giving way to electronic methods of interaction – e-mail, in particular.

Before you rush to judgment, the change noted above isn’t necessarily a bad thing. There are many benefits to e-mail. For example, e-mail is a convenient way for geographically dispersed parties to communicate; it’s also a boon for people with hectic schedules. For these and other reasons, e-mail has become a great tool for facilitating negotiations.

This, too, makes sense. Because other than the convenience of being able to respond whenever one has time, e-mail communication allows lawyers more time to draft strategic responses in a coherent and meticulous way. This is particularly helpful in the context of complex business deals and arrangements with a plethora of terms and intricacies. Unlike the typical issue-by-issue structure of face-to-face negotiations, lawyers can handle multiple issues at once when they negotiate via e-mail.

But while e-mail does offer many advantages, lawyers should nonetheless be aware of some of the pitfalls associated with this method of communication, especially in the context of legal negotiations.

Social Contagion

Social contagion is the term used to describe nonverbal and paraverbal behavior that can build rapport during negotiations. Paraverbal behavior refers to language that indicates that you are listening to the other side. The lack thereof in the context of e-mail communications often means that the other side will not know whether you are really understanding and listening to their concerns. In e-mail communications, people are unable to pick up on nonverbal cues that enable fluid and genial back and forth during face-to-face negotiations. Statements made in e-mails are not tempered by smiles, nodding, and positive body language that are intimated during face-to-face conversation.

E-mail also eliminates the ability of people to pick up on vocal inflections that indicate sarcasm as opposed to sincerity. Misinterpretation occurs more frequently in the absence of direct social interaction. Consequently, it is harder to reach an agreement.

A Little Small Talk Can Make a Huge Difference

In an interesting study by Janice Nadler from Northwestern, law students participated in a one-on-one negotiation exercise via e-mail. Students negotiated the purchase of a new car. Roughly half of the students communicated entirely via e-mail in a control condition. The experimental half were instructed to call their partner prior to beginning negotiations and engaged in a 5-10 minute “getting to know you” telephone conversation that was purely social in nature (i.e., no mention of anything related to the issues up for negotiation). However, actual negotiations for all participants took place exclusively via e-mail. For both groups of students, actual negotiations took place exclusively via e-mail.

Nadler’s results showed that students who had an initial phone conversation prior to entering negotiations were more than four times as likely to reach an agreement as those who had no preliminary interaction. Three out of thirty-five pairs of students who had engaged in small talk did not reach an agreement compared to fourteen out of thirty-seven pairs of students who did not engage in small talk. For the three “small talk” pairs who failed to reach an agreement, the last offer on the table was lower than one side’s reservation price. However, for the “no small talk” pairs, nine out of the fourteen pairs that did not reach an agreement would actually have been better off accepting the last offer on the table (i.e., it would have been economically beneficial for each party to reach an agreement). Nadler found that “small talk” negotiators reported feeling more cooperative and less competitive toward their counterpart than negotiators who did not engage in preliminary small talk. Small talk negotiators were also less likely to be combative during negotiations by threatening to walk away from the table and search for an alternative arrangement.

I’ll Scratch Your Back If You Scratch Mine: The Role of Social Reciprocity in Negotiations

Even a brief amount of time spent getting to know opposing counsel can help you more easily reach a negotiated agreement. This might be so because individuals who engage in non-adversarial small talk prior to commencing negotiations tend to enter negotiations with a more cooperative mindset and with more trust in the other person, which can make a world of difference in e-mail negotiations where you are unable to read positive signals that would serve to temper contentious face-to-face negotiations.  Moreover, when lawyers enter a negotiation more willing to disclose their issue priorities, their cooperation may elicit reciprocity from the other side, which may then facilitate recognition of points of common interest.

Establish Trust Prior to E-mail Negotiations

It is easy for negotiators who have no history with each other to be suspicious of the other party and prone to disagreeable behavior. The lack of face-to-face interaction makes it easier for parties with adversarial issues to attribute sinister motives to the other side. This means that it is critical for parties who will be negotiating via e-mail to somehow establish a working trust through some sort of social interaction prior to beginning negotiations.

Although some may argue that it seems like a waste of time and energy to engage in small talk with your opponent, empirical data shows otherwise. Building rapport through even a brief five-minute phone conversation can result in better agreements for both sides. When not all of the issues to be negotiated are distributive zero sum issues (i.e., ones for which the parties’ interests are directly opposed), it is particularly important to establish positive rapport so that you don’t miss out on identifying compatible issues (i.e., when both sides want the same thing).  

Spending a little time engaging in small talk can improve the efficiency of later negotiations as well as increase both parties’ level of satisfaction at the end of the negotiation. A little small talk can go a long way.

 For more information about the use of small talk to facilitate e-mail negotiation, see Janice Nadler, Rapport in Legal Negotiation: How Small Talk Can Facilitate E-mail Dealmaking, 9 Harv. Negot. L. Rev. 223 (2004).