Section XI: It’s a Bit Technical
Section XI addresses the postmodern era of communication, in which hardly anyone with a negotiating proposal to make puts it in a “letter”. It begins with a chapter that surveys the confusing panoply of options now available as media and technologies, and outlines a way of making sense of them. Next we move to what has probably become the baseline method of ordinary, day-to-day communication, particularly of components of a negotiation that has yet to be framed in complete documents—i.e., e-mail. Yet texting has now become so routine that even people who don’t believe they negotiate by text are likely to, at least as to some procedural issues or fragmentary data or component ideas; this is analyzed in the next chapter. From there, it’s a short hop to recognizing that you actually negotiate, or will soon negotiate, through still other technologies; the next two chapters respectively address videoconferencing—by now, almost routine, for many—and an array of less common additional technologies, many of them proprietary.
Two very different groups have particular needs and uses for technology in their negotiations: lawyers, and the young. The final two chapters of this section analyze first lawyers’ needs, and how technology is changing their practice, and then, the youngest adult generation—who are such avid users of technology that it is barely possible to reclaim their attention from it.
59. Choosing Among Modes of Communication
Andrea Kupfer Schneider and Sean McCarthy
This chapter serves as the overview to all of the chapters on the use of different media and technology as part of negotiation. How do we make sense of all our options? The authors argue that knowing your own “default”, while understanding your counterpart and the context, is crucial. Being able to choose wisely among the different modes requires careful consideration of the advantages and disadvantages that go along with each of these. This chapter can usefully be read in conjunction with Thompson, Ebner, and Giddings on Nonverbal Communication, as well as with the technology chapters—particularly, Ebner’s chapters on Email, Texting, and Videoconferencing.
60. Negotiation via Email
Noam Ebner
Email is typically the first technology people think of when they start to imagine negotiating using a computer. By now, this is a common practice, at least for parts and phases of a typical negotiation. Yet few practitioners or students pause to consider how the technology affects what is said, how it is said, and when and how it is heard. Reviewing what is now a substantial body of research, the author finds seven major challenges in negotiating via e-mail, most of which are as yet poorly understood. He goes on to provide practical advice on each one.
61. Negotiation via Text Messaging
Noam Ebner
“Never!” That’s the typical reply, says the author, when he queries a negotiator about negotiating through text messages. Not so fast, Ebner says—look closely at how your day goes and how your various forms of communication fit together, and you may well find yourself already handling part of that traffic via text. Furthermore, he says, in the future you can expect to use this medium more, as more and more of your counterparts depend on it. Yet negotiating via text is significantly different even from email negotiation. Ebner walks you through the assets, and the liabilities.
62. Negotiation via Videoconferencing
Noam Ebner
Here, Ebner addresses a tool which has crept up on negotiators. Videoconferencing for negotiation was first hailed long ago with certain expectations: high quality video at high cost, to be used for negotiation between business teams in expensively equipped conference rooms. But now, these conditions are largely supplanted by widespread use of lower-resolution videoconferencing tools such as Skype and other low-to-no-cost programs, of varying quality and reliability. As one result, people now find themselves, routinely, in face-to-face negotiations with people whose faces cannot be seen very clearly. The social effects go far beyond this, too—concerns about who might be listening out of camera view, and other privacy and confidentiality issues, combine with widely varying levels of comfort with this technology to create a significant likelihood of a mismatch between parties who do not trust, or cannot manage, the technology or the setting equally. Ebner provides a matrix of considerations that apply to nonverbal communication in video conferencing, and another to help a negotiator understand features and risks of using video.
63. The Technology of Negotiation
Noam Ebner
Here, the author follows up on his Email and Text negotiating chapters, both of which discuss technology which by now have become quite generic. This chapter is different: Ebner here describes representative examples of a burgeoning class of proprietary programs, which individually address one or another situation or problem a negotiator may have. Together, they form an expanding array of electronic helpers – and merely hint at what may be available not far into the future. It is increasingly evident, as a result, that keeping up with the field is no longer simply a matter of reading; learning new programs as they come along is virtually guaranteed to become more and more essential.
64. Lawyers and Online Negotiation
Orna Rabinovich-Einy and Ethan Katsh
In the next decade, lawyers' roles will change dramatically because of the expansion of online dispute resolution (ODR). As technology increasingly pervades professional life, demand for efficient negotiation tools and software-supported dispute resolution processes can also be expected to grow. The authors discuss how lawyers’ practice is changing as a result of the advent of high technology specific to their field, and outline both the uses and risks for lawyers that are associated with a whole series of specific platforms and programs that are increasingly being used to transact or settle cases online and offline, including in courts. Finding the technologies to be constantly evolving and disruptive of existing practice, the authors nevertheless conclude that lawyers have little option but to learn, use and advise their clients about these platforms. They point out that some of the new technologies promise to obviate a great deal of unrewarding work, to speed up possible resolution and, if designed appropriately, to enhance fairness and access to justice, reinforcing the negotiation field’s strong interest in “process pluralism”.
65. Reclaiming Attention in the Digital Generation Negotiator
Lauren A. Newell
So many successive generations of people have remarked on how they don’t understand the next generation that it’s now become a cliché. Yet the “digital generation” does represent a departure from years of assumptions of how people will typically get and process information, how they understand the world, and how many different things they ought to expect to do at the same time. Newell reviews the research on the digital generation’s ability to maintain sustained attention over time, and finds that, yes, there is a difference. Multitasking—defended by many as an efficient way to process multiple concurrent streams of information—has been exposed as something of a myth. And there are other prices paid for assuming that one can handle multiple digital forms of communication, from cognitive overload to neurological changes. Yet communication technology is here to stay, Newell says: we have to learn how to handle it. She offers a succession of techniques for reclaiming and holding attention.
Two very different groups have particular needs and uses for technology in their negotiations: lawyers, and the young. The final two chapters of this section analyze first lawyers’ needs, and how technology is changing their practice, and then, the youngest adult generation—who are such avid users of technology that it is barely possible to reclaim their attention from it.
59. Choosing Among Modes of Communication
Andrea Kupfer Schneider and Sean McCarthy
This chapter serves as the overview to all of the chapters on the use of different media and technology as part of negotiation. How do we make sense of all our options? The authors argue that knowing your own “default”, while understanding your counterpart and the context, is crucial. Being able to choose wisely among the different modes requires careful consideration of the advantages and disadvantages that go along with each of these. This chapter can usefully be read in conjunction with Thompson, Ebner, and Giddings on Nonverbal Communication, as well as with the technology chapters—particularly, Ebner’s chapters on Email, Texting, and Videoconferencing.
60. Negotiation via Email
Noam Ebner
Email is typically the first technology people think of when they start to imagine negotiating using a computer. By now, this is a common practice, at least for parts and phases of a typical negotiation. Yet few practitioners or students pause to consider how the technology affects what is said, how it is said, and when and how it is heard. Reviewing what is now a substantial body of research, the author finds seven major challenges in negotiating via e-mail, most of which are as yet poorly understood. He goes on to provide practical advice on each one.
61. Negotiation via Text Messaging
Noam Ebner
“Never!” That’s the typical reply, says the author, when he queries a negotiator about negotiating through text messages. Not so fast, Ebner says—look closely at how your day goes and how your various forms of communication fit together, and you may well find yourself already handling part of that traffic via text. Furthermore, he says, in the future you can expect to use this medium more, as more and more of your counterparts depend on it. Yet negotiating via text is significantly different even from email negotiation. Ebner walks you through the assets, and the liabilities.
62. Negotiation via Videoconferencing
Noam Ebner
Here, Ebner addresses a tool which has crept up on negotiators. Videoconferencing for negotiation was first hailed long ago with certain expectations: high quality video at high cost, to be used for negotiation between business teams in expensively equipped conference rooms. But now, these conditions are largely supplanted by widespread use of lower-resolution videoconferencing tools such as Skype and other low-to-no-cost programs, of varying quality and reliability. As one result, people now find themselves, routinely, in face-to-face negotiations with people whose faces cannot be seen very clearly. The social effects go far beyond this, too—concerns about who might be listening out of camera view, and other privacy and confidentiality issues, combine with widely varying levels of comfort with this technology to create a significant likelihood of a mismatch between parties who do not trust, or cannot manage, the technology or the setting equally. Ebner provides a matrix of considerations that apply to nonverbal communication in video conferencing, and another to help a negotiator understand features and risks of using video.
63. The Technology of Negotiation
Noam Ebner
Here, the author follows up on his Email and Text negotiating chapters, both of which discuss technology which by now have become quite generic. This chapter is different: Ebner here describes representative examples of a burgeoning class of proprietary programs, which individually address one or another situation or problem a negotiator may have. Together, they form an expanding array of electronic helpers – and merely hint at what may be available not far into the future. It is increasingly evident, as a result, that keeping up with the field is no longer simply a matter of reading; learning new programs as they come along is virtually guaranteed to become more and more essential.
64. Lawyers and Online Negotiation
Orna Rabinovich-Einy and Ethan Katsh
In the next decade, lawyers' roles will change dramatically because of the expansion of online dispute resolution (ODR). As technology increasingly pervades professional life, demand for efficient negotiation tools and software-supported dispute resolution processes can also be expected to grow. The authors discuss how lawyers’ practice is changing as a result of the advent of high technology specific to their field, and outline both the uses and risks for lawyers that are associated with a whole series of specific platforms and programs that are increasingly being used to transact or settle cases online and offline, including in courts. Finding the technologies to be constantly evolving and disruptive of existing practice, the authors nevertheless conclude that lawyers have little option but to learn, use and advise their clients about these platforms. They point out that some of the new technologies promise to obviate a great deal of unrewarding work, to speed up possible resolution and, if designed appropriately, to enhance fairness and access to justice, reinforcing the negotiation field’s strong interest in “process pluralism”.
65. Reclaiming Attention in the Digital Generation Negotiator
Lauren A. Newell
So many successive generations of people have remarked on how they don’t understand the next generation that it’s now become a cliché. Yet the “digital generation” does represent a departure from years of assumptions of how people will typically get and process information, how they understand the world, and how many different things they ought to expect to do at the same time. Newell reviews the research on the digital generation’s ability to maintain sustained attention over time, and finds that, yes, there is a difference. Multitasking—defended by many as an efficient way to process multiple concurrent streams of information—has been exposed as something of a myth. And there are other prices paid for assuming that one can handle multiple digital forms of communication, from cognitive overload to neurological changes. Yet communication technology is here to stay, Newell says: we have to learn how to handle it. She offers a succession of techniques for reclaiming and holding attention.
Section XI authors:
Noam Ebner is a professor in the Negotiation and Conflict Resolution program, at Creighton University’s Department of Interdisciplinary Studies. Previously an attorney and a mediator, he has taught mediation and negotiation in a dozen countries around the world. He was among the first teachers to engage in online teaching of negotiation and conflict studies, and to explore the potential for Massive Open Online Courses in these
fields. Noam’s research interests include online negotiation and dispute resolution, trust and its role in dispute resolution, negotiation pedagogy and online learning. Noam can be contacted at NoamEbner@creighton.edu; his work can be found at ssrn.com/author=4251-53.
Ethan Katsh is Professor Emeritus of Legal Studies at the University of Massachusetts and Director of the National Center of Technology and Dispute Resolution (www.odr.info). He is widely recognized as one of the founders of the field of online dispute resolution (ODR). With Janet Rifkin, he conducted the eBay Pilot Project in 1999, which led to eBay’s current system that handles over sixty million disputes each year. He has published widely about law and technology and, most recently, is co-author of Digital Justice: Technology and the Internet of Disputes (Oxford University Press 2017.)
Sean McCarthy is an athletic compliance monitoring coordinator at Texas Tech University and a graduate of the University of Minnesota and Marquette University Law School. He is a lifelong fan of the Minnesota Vikings and football guy Mike Zimmer.
Lauren A. Newell is an associate professor of law at the Ohio Northern University Pettit College of Law, where she teaches courses on negotiation, business organizations, and securities regulation. Her research focuses on the psychological aspects of negotiation and lawyering, including the emotional dimension of negotiation and the impact of new technology on negotiation and lawyering. She received her J.D. from Harvard Law School
and her B.A. from Georgetown University.
Orna Rabinovich-Einy is an associate professor at the Haifa Law Faculty. Her areas of expertise are online dispute resolution, alternative dispute resolution, and civil procedure. She has published widely on the impact of technology on dispute resolution, the relationship between formal and informal justice systems, and dispute systems design. Most recently she has co-authored a book with Ethan Katsh entitled Digital Justice: Technology and the Internet of Disputes. Rabinovich-Einy holds a J.S.D. from Columbia University. She was admitted to the Bar in Israel (1998) and in N.Y. (2001), and was certified as a mediator in N.Y. (2003).
Andrea Kupfer Schneider is a Professor of Law at Marquette University Law School, where she teaches Dispute Resolution, Negotiation, Ethics, and International Conflict Resolution and is the director of Marquette’s nationally-ranked dispute resolution program. Professor Schneider is the co-author or editor of more than 10 textbooks in dispute resolution and negotiation. She has also written numerous articles on negotiation skills and styles, dispute system design, international conflict, and gender and negotiation. Professor Schneider received her A.B. cum laude from the Woodrow Wilson School of International Affairs and Public Policy at Princeton University and her J.D. cum laude from Harvard Law School.
Noam Ebner is a professor in the Negotiation and Conflict Resolution program, at Creighton University’s Department of Interdisciplinary Studies. Previously an attorney and a mediator, he has taught mediation and negotiation in a dozen countries around the world. He was among the first teachers to engage in online teaching of negotiation and conflict studies, and to explore the potential for Massive Open Online Courses in these
fields. Noam’s research interests include online negotiation and dispute resolution, trust and its role in dispute resolution, negotiation pedagogy and online learning. Noam can be contacted at NoamEbner@creighton.edu; his work can be found at ssrn.com/author=4251-53.
Ethan Katsh is Professor Emeritus of Legal Studies at the University of Massachusetts and Director of the National Center of Technology and Dispute Resolution (www.odr.info). He is widely recognized as one of the founders of the field of online dispute resolution (ODR). With Janet Rifkin, he conducted the eBay Pilot Project in 1999, which led to eBay’s current system that handles over sixty million disputes each year. He has published widely about law and technology and, most recently, is co-author of Digital Justice: Technology and the Internet of Disputes (Oxford University Press 2017.)
Sean McCarthy is an athletic compliance monitoring coordinator at Texas Tech University and a graduate of the University of Minnesota and Marquette University Law School. He is a lifelong fan of the Minnesota Vikings and football guy Mike Zimmer.
Lauren A. Newell is an associate professor of law at the Ohio Northern University Pettit College of Law, where she teaches courses on negotiation, business organizations, and securities regulation. Her research focuses on the psychological aspects of negotiation and lawyering, including the emotional dimension of negotiation and the impact of new technology on negotiation and lawyering. She received her J.D. from Harvard Law School
and her B.A. from Georgetown University.
Orna Rabinovich-Einy is an associate professor at the Haifa Law Faculty. Her areas of expertise are online dispute resolution, alternative dispute resolution, and civil procedure. She has published widely on the impact of technology on dispute resolution, the relationship between formal and informal justice systems, and dispute systems design. Most recently she has co-authored a book with Ethan Katsh entitled Digital Justice: Technology and the Internet of Disputes. Rabinovich-Einy holds a J.S.D. from Columbia University. She was admitted to the Bar in Israel (1998) and in N.Y. (2001), and was certified as a mediator in N.Y. (2003).
Andrea Kupfer Schneider is a Professor of Law at Marquette University Law School, where she teaches Dispute Resolution, Negotiation, Ethics, and International Conflict Resolution and is the director of Marquette’s nationally-ranked dispute resolution program. Professor Schneider is the co-author or editor of more than 10 textbooks in dispute resolution and negotiation. She has also written numerous articles on negotiation skills and styles, dispute system design, international conflict, and gender and negotiation. Professor Schneider received her A.B. cum laude from the Woodrow Wilson School of International Affairs and Public Policy at Princeton University and her J.D. cum laude from Harvard Law School.