Before you click to the next article—this is not another post-pandemic article about the rise of Zoom or Teams. Rather, this is an article about how to leverage that technology. Backed by data and research. To improve your negotiations, whether when meeting and conferring or mediating. To get there, let’s first address the technology. Then, I’ll discuss critical differences as compared to other mediums. From there, the tips.
Stating the obvious: We ‘Zoom’ a lot.
According to a leading treatise addressing online dispute resolution—aptly titled Online Dispute Resolution: Theory and Practice—use of online technology in dispute resolution (ranging from email to video) has expanded. Once primarily used in cases in which geographical expanses dictated the use of a remote format, nearly every imaginable area of practice now uses technology in negotiations. Interestingly, even when parties have the ability to convene in-person, online dispute resolution can be particularly advantageous for “disputes in which emotional, rational, and social issues are at least as important as transactional elements”—notably employment mediation.
The medium is never neutral
As Online Dispute Resolution notes, reliance on a particular technology in dispute resolution has its consequences. For example, according to Harvard Business School’s Max Bazerman in his recently released book, Negotiation: The Game has Changed, the term “channel richness” concerns “the amount of verbal and nonverbal information that can be transmitted from one person to another during any given communication.” As he reports, “social scientists have found that ‘channel richness’ is enhanced as we move from email to telephone to face-to-face communication.”
Knowing the richness of the various mediums is critical because, as Bazerman reports, we “overestimate the degree to which others understand our intended message,” and we often are unable to effectively convey our own lack of understanding of what someone else communicates. That certainly poses problems to dispute resolution.
As an outsider to many a dispute (as a mediator or discovery facilitator), I routinely see how this plays out when reviewing the background emails leading up to the ripe dispute. With each passing email (the medium with the lowest level of richness), the misunderstanding chasm widens. Frustrations often rise as parties fumble their attempts to bridge that gap. By the time I am involved, the seedling that spawned the dispute is often unrecognizable from the pending disagreement. Bazerman’s research thus supports the old adage of picking up the phone or meeting in person—two mediums with greater channel richness.
Get rich
Here are some practical solutions to leverage video and enhance the richness of your negotiations.
Use larger screens: Bazerman notes that video conferencing can promote value creation in negotiation. Not surprisingly, “larger screens are associated with greater trust and richer communication—that is, laptops are better than smartphones when it comes to video negotiations.”
Think this is just a problem for your adversary? According to Bazerman, when the size of the screens of two negotiating counterparties differs, the advantage on the value-claiming side goes to the negotiator with the larger screen.
Don’t multitask: One request I have whenever mediating via videoconference is that participants remain in the breakout room all day as opposed to popping in and out to tend to other matters. Why? Bazerman reports that multitasking results in less trust. Again, this is not the opposition’s problem. Instead, the multitasker achieves worse benefits than the party who is focused on the negotiation.
Don’t throw the baby out with the bath water: Sure, one of the benefits of using video is that parties and litigators in contentious cases need not meet in person with their adversaries. However, Bazerman’s studies suggest that social connections play an incredibly important role in successful negotiation. For example, when his students negotiate by email with their classmates (with whom they are familiar), they are able to reach resolution in 90% or more of their simulations. When the same negotiations occur with strangers from another school, the success rate can plummet below 70%.
So, rather than negotiate in siloed breakout rooms, consider opportunities to socialize, such as pre-mediation conferences, attorney-to-attorney sessions, and joint sessions. Doing so puts the focus on the relationship and building trust.
The next time you are negotiating via video, consider whether your setup is enhancing channel richness and resulting in a trusted relationship. Afterall, the purpose of any negotiation is achieving the best result possible as compared to your alternative of not reaching an agreement.