E-mail recently has become a popular mode of communication for lawyers negotiating deals and conducting settlement discussions. But the obvious conveniences of e-mail as a negotiation medium can blind users to its pitfalls. The impoverished nature of the e-mail medium can lead to misunderstandings, sinister attributions, and ultimately, negotiation impasse. How can lawyers make use of the advantages of e-mail for negotiation while overcoming its disadvantages? One solution consists of a very simple insurance measure: small talk. In the empirical demonstration described in this Article, law students each negotiated a commercial transaction with another law student at a different university using e-mail as the mode of communication. Negotiators who engaged in a brief, getting-to-know-you phone conversation built substantial rapport that resulted in positive social and economic benefits for both parties. This initial small talk by telephone made subsequent e-mail interaction proceed more smoothly because the early creation of rapport helped the negotiators approach the negotiation with a more cooperative mental model, thereby trusting in each other's good intentions. This, in turn, led to a successful negotiation that concluded with a contract, and engendered positive feelings about one another and expectations of successful dealings in the future. By contrast, negotiators who did not engage in small talk were over four times more likely to reach an impasse, and ended up feeling resentful and angry about the negotiation. The Article concludes by discussing implications and recommendations for lawyers who use e-mail to negotiate.

Date of this Version

August 2003