Washington Lawyer - December 2017 - 9
CAREER & PROFESSIONAL DEVELOPMENT
The Art of
By William Roberts
is the number of
n 1981, when Harvard Negotiation
Project leaders Roger Fisher and
William L. Ury wrote their now
classic bestseller Getting to Yes:
Negotiating Agreement Without
Giving In, many publishers turned
down their manuscript because
they thought it was too obvious.
Now, decades later, Fisher and Ury's focus on the
psychology of negotiation, their articulated method
of principled bargaining, and their emphasis on
finding solutions by determining real needs
are foundational. But times have changed, and
strategy in the legal world has become ever
more sophisticated. The buzz these days is
about 3-D negotiations.
Nowadays, of course, most routine business
communication is done by email. But when you're
negotiating on behalf of a client, communicating
by email raises a whole new layer of challenges and
opportunities. That's where Alissa Stern, a Bethesda,
Maryland-based negotiation consultant, comes in.
Stern is a veteran of the Harvard Negotiation Project
and teaches a Continuing Legal Education course
on email negotiation skills for D.C. Bar members.
"The biggest challenge with email negotiation is
the number of assumptions we make," Stern says.
"We assume that we understand what the other
parties intended and we assume that the other side
understands us in the way we intended. Between
the speed by which emails are read, the use of
shorthand and jargon, the starting and stopping
of conversations, the occasional cross-posting and
multitasking, and the lack of body language and
inability to look into someone's eyes, the potential
for misinterpretation is huge."
Stern says that despite the challenges, there
are some benefits to email negotiations. "Email
negotiation offers opportunities that face-to-face
discussions do not: we have more time to reflect
- and sometimes to cool down - before we
respond (we can snarl and scream without the
other side knowing). We can consult others, we
can provide additional information via attachments,
and we can use pictures and graphics to better
explain what we mean. And so can the other side,
which may make the situation more comprehensible to us, too," she says.
"By setting our own pace of when we want to
respond and by giving ourselves a chance to review
what we write before it is sent, we can more easily
separate the problem from the people (and all of
their and our baggage) and move into a situation
where we are working together on something that
is beneficial to both of us, remembering that the
goal of negotiation is to meet our side's and the
other side's interests," adds Stern.
Stern draws on her CLE course to provide some quick
tips on email negotiations. "In the class, we develop
skills to help us take advantage of the opportunities
of email negotiation while minimizing its drawbacks.
We consider language, tone, timing, how we can
enlarge the pie, graphics, subject lines, attachments,
and a range of privacy and confidentiality issues,"
Stern says. "We discuss when it's best just to pick up
the phone or meet the other parties in person, and
when it may be better to stick to email or to use
some combination of the two."
Stern tells CLE attendees to practice - and perhaps
even more importantly, really focus on - how best
to use the medium of email to their benefit.
William Roberts is a regular contributor to
Alissa Stern by Audrey Rothstein