Talk, don’t email
Some time in the last decade, negotiators lost the art — the joy — of the spontaneous two-way conversation. We eschewed it for the transmission of electronic letters, flung like percussive grenades between barricaded trenches. If we talk at all, we do so by pre-arrangement, in formal, minuted, stage-managed, all-hands conferences.
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Negotiation Anatomy™
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This is a shame. The JC has his theories, as usual, why this happened: negotiations were passed down, with printed instructions, into greener and greener hands, where writing everything down and emailing it was just safer.
But if process efficiency is your goal — and the goal of juniorising and the playbookification of negotiation is, without question, process efficiency — then this tendency is Sod’s law at work. Consider the difference between emailing the credit officer with your question, and waiting 24 hours for her to pick it up, think about it, and send you an elliptical reply (as likely as not kicking off a circle of escalation) — it never quite answers the question you had first time, does it? — or just calling her up and asking her there and then?
In the first case, there is so much waiting: the time it takes to compose that email, describe your problem, outline the arguments for and against and your suggested outcome.[1] Then the waiting. The wondering. The nervousness. The stress. The heart flutters, as you pick petals off the daisy. Has she read it? Will she soon? Does she even care? Should I maybe send a follow-up email? Will I seem needy?
It will never occur to call. This may be because systematic juniorisation of the negotiation function means the negotiators do not have the experience and expertise to talk fluently on their subject matter, and are therefore afraid to call — and their counterparts, similarly juniorised, will be afraid to pick up.)
External negotiation
The same will obtain, a fortiori, where outside counsel are involved. Here there is the added frisson of the agency problem working its immeasurable magic.
You are a young associate. Detail is your meat and drink. By schooling yourself on form, you aspire one day to attain command of substance. What to do, then, when presented with a draft at significant variance from your client’s commercial expectation?
One of three things can have happened:
One: You have misunderstood the transaction.
Two: The other side’s counsel has misunderstood the transaction — or sent the wrong documents, or not checked them properly etc.
Three: You both understood the transaction, but there is perfidy afoot. The other side is trying to sneak points past you wholesale.
The overwhelming odds are that it is one of the first two. Remember Hanlon’s razor: Do not attribute to malice things that can just as well be explained by stupidity. There is plenty of stupidity: consider how little you know, and extrapolate it. Everyone is bluffing.
So, give the benefit of the doubt. Call and ask what’s going on. You will quickly resolve any misunderstandings, and identify that yes, indeed, there has been some ghastly mistake. All can be restored without all-nighters pulled or drafts exchanged. Even if you it can’t be explained by stupidity, calling still the best strategy. You will know soon enough if your counterparty is a rogue.
That call you will save you, your counterpart and your respective clients hours of time, expense and needless legal clerkship.
But, alack: at once the difficulty of asserting one’s legal value reveals itself. For if you do call and thereby avert that cost, time and inconvenience, who will notice? Who will appreciate how you stilled the night-time dogs, before they had a chance to bark? A paid advisor has little incentive to put in that call. She may be fearful of displaying her own ignorance (should it turn out to be scenario one). If it turns out to be scenario two, she simply spares her opponent’s blushes. Where is the fun in that? Correcting basic errors is one of the unalloyed joys of commercial practice.
Communication as an infinite game
The same dynamic exists in a negotiation. The JC snookered himself into using a four-box quadrant to illustrate this — he has an irrational fear of anything thought-leaders are fond of — but they do seem to fit here because there are two perpendicular axes at play: How many people are you speaking to, and in what medium.
How many
How many people are in your audience? The more there are, the more formal you must be, the more generalised, the less opportunity for there is for nuance and that lubricating milk of human frailty, wit. The more people, the narrower will be their common interest. Plainly, the more people there are, the greater will be the cultural, social and human barriers to unguarded constructive communication.
Fort any communication other than a one-way broadcast, one-to-many is a categorically worse medium for communication than one-to-one.
What medium
Now your “medium of communication” can take a more or less personal, and immediate form. The least personal and immediate communications are written ones (here the message is, literally, removed from the sender’s personality and, even where transmitted immediately, need not be answered in real time). The most personal and immediate ones are in actual, analogue person — like that ever happens these days — and failing that, a video call where you can see and hear nuance, then an audio call where you can just hear it. But any of these is vastly superior to written communication.
On constructive and defensive communication
In terms of our Onworld/Offworld distinction let us make some value judgments: whether we like it or not, the offworld we inhabit is a complex, non-linear one. Personal, creative, immediate, and substantive communications beat impersonal, delayed, and formalistic ones. Constructive communicators — players of “keepy-uppy” and like-minded infinite games — communicate to get along, and they therefore get on better than those who communicate defensively — who play backward-looking, bounded, aero-sum, finite games.
But the sorts of communications you favour depend what sort of, and how good, a communicator you are. Constructive, expert, imaginative, pragmatic, empathetic participants will be good at immediate interpersonal communications. Negative, defensive, inexpert, heartless, wooden communicators tend to be better at delayed, written communications.
Why would you design your communication channels to favour negative, unempathetic, inexpert, defensive people?
If you just call her, you get the warmth of human contact right off the bat, you get to lay out the issue directly without all that formatting and colour coding, and if you really need to you can (and okay, probably should) send him an email afterwards memorialising what you discussed — this can be shorter, since you don’t need to lay out all the explanatory detail, and no need for colour-coding — and also you are not waiting on anything from this email: you have the oral decision, you can go — the credit dude can confirm in due course.
See also
References
- ↑ This is the perfect means of escalation. Few are as well-formed as this.