The use of electronic communication in dispute resolution

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Edward J. Sikorski, Jr.

Email and text messaging have become the standard and almost exclusive way of communicating in our electronic society. The technology is so well defined that we often are required to decipher and print back coded letters to verify that we are human beings delivering or responding to electronic correspondence.

What did you say?

The speed of delivery of the messages itself tends to create short, direct statements that are sometimes ill conceived, lack reflective word choices, and fail to accurately convey the true intent of the transmissions sent.

Say it isn’t so

This form of communication becomes a real handicap in collaborative negotiations that require reflection, meaningful word choice, consideration of opposing views, and the formulation of thoughtful responses. In fact, this handicap exacerbates conflicts and often degenerates into further unpleasant exchanges i.e. escalates the conflict rather than moving toward resolution and bars further conflict resolution efforts.

Navigating in uncharted waters

Mediators who attempt to navigate the uncharted waters of proceeding by way of electronic media should be aware of the pitfalls inherent in that process. This article is intended to address those issues.

Recent studies have demonstrated that:

1) People tend to reveal information honestly when communicating in person, and the receiver believes and acts on that information.

2) By contrast, online negotiators tend to hold back private information.

3) Information exchanged over electronic media such as email and text are less likely to be true, less likely to be relevant and clear, and therefore less informative and useful than similar information exchanged face to face.

Tell me what I want to hear and I won’t argue with you

The real communication confusion caused by email or text language stems from the fact that the receiver cannot accurately decipher what the sender is implying.

This simple reality intensifies, worsens, and inflames the cognitive barriers that prevent effective communication and conflict resolution that increase;

1) Cognitive Dissonance. Failing to consider data contradicting one’s viewpoint. Justifying conduct and/or blaming everyone else.

2) Assimilation Bias. Behaving as if adverse information was never presented.

3) Inattentional Blindness. Failing to assess the “big picture” – missing the forest for the trees

4) Mistaking a Small Part of the Truth for the Whole Truth. Especially in cases of multiplicity of issues/parties, forcefully asserting one’s own arguments while losing sight of the bigger picture, i.e. the themes of the case and appeal of the client,

5) Reactive Devaluation. Minimizing the value of a proposal because it came from the opposite side. “Consider the Source”.

6) Change Blindness. Overlooking significant factual developments and failing to re-evaluate based on new information.

7) Attribution Bias. Allowing anger and blame to override rational decision making simply because the parties are engaged in an escalating dispute.

Running aground

As seemingly convenient as electronic media may be, it lacks the visual cues that help convey valuable information and forge connections in face to face in person talks. Without access to gestures, facial expressions, and tone of voice, misinterpretation of intent runs rampant and further trouble is sure to follow.

In two famous studies conducted in the 1970’s the UCLA researchers created the 7-38-55 rule. That is, only 7 percent of a message is based on the words while 38 percent comes from the tone of voice and 55 percent from the speaker’s body language and face.

Studies conducted about a decade ago concluded that the lack of intonation and facial expression made it harder to accurately decode meaning and intention in electronic communications. A recipient’s tendency to over-estimate their ability to correctly decode the sender’s message further tangled communication.

Research published in October 2017 entitled “The Humanizing Voice: Speech Reveals, and Text Conceals, a More Thoughtful Mind in the Midst of Disagreement” concluded:

“These results suggest that the medium through which people communicate may systematically influence the impressions they form of each other. The tendency to denigrate the minds of the opposition may be tempered by giving them, quite literally, a voice”

In other words, when there is disagreement communication by text/email makes the communicator seem less human and more machine-like, which in turn aggravates the conflict.

Conclusion

Negotiation and Mediation at their core are human interventions. They require a personal connection not present in electronic communications.

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An approved Washtenaw County Civil Mediator and co-chair of the Washtenaw County ADR Section, Edmund J. Sikorski Jr. is a recipient of the 2016 National Law Journal ADR Champion Trailblazer Award. He can be reached at edsikorski3@gmail.com.
 

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