This article is reprinted with permission from the Collaborative Law Journal (Fall 2007).
Mediators and Collaborative Practice (“CP”) professionals receive training in communication skills, but that training typically involves in-person communications. In a world where email is beginning to replace much of our face-to-face and telephonic communication, there is a need for training that addresses email communications. The purpose of this article is to begin to fill that void in training by examining some of the ways in which e-mail communication differs from other types of communication. In addition, the article will explore the lessons we can learn from mental health professionals about how to communicate more effectively using electronic media.
Although email is unlikely to replace in-person, face-to-face communications entirely, it has become increasingly useful as an adjunct to direct in-person communication in CP, mediation, or other forms of dispute resolution. In some cases, particularly those in which in-person meetings are impractical or prohibitively expensive, email has become virtually indispensable. And even in cases where four-way meetings are used extensively, email plays an important role as a medium in which the parties and counsel exchange information and proposals between meetings.
There is a growing literature on what has come to be called “netiquette” – the set of rules that guide e-mail users who wish to avoid inflaming anger and otherwise offending people through their electronic communications. For example, even occasional email users quickly learn that the use of CAPITAL LETTERS is interpreted in cyberspace as “shouting” and therefore should be used cautiously, if at all. 
The purpose of this article is not to summarize the principles of netiquette.  Instead, the focus here will be applying research about relationships to computer-based communications. One of the foundation stones of the CP movement is the recognition that attorneys and other professionals develop reputations for collaboration or competition, and that those reputations have value in a marketplace in which clients are seeking services that will meet their objectives.  In the world of CP, practitioners generally seek to cultivate a reputation for collaboration, and therefore the quality of their professional relationships matters a great deal. It has been my experience that some CP practitioners who value their reputations for collaboration nevertheless sometimes send emails that do not communicate that collaborative intention as effectively as the practitioners do in person.
Why should that be the case? The discussion below addresses some of the reasons why email, despite its advantages, can be so easily misinterpreted. The article then provides some guidelines, based on social science research, for overcoming the problem of misinterpretation.
1. Advantages and Disadvantages of Email
Before addressing the question of what mental health professionals can teach us about email, it is worth considering some of the salient characteristics of email communications.
One of the main virtues of e-mail communication is that the messages are revisable – i.e., the author has the ability to edit the message before sending it (not possible, of course, in direct, face-to-face or telephonic communications). Experience shows that liberal use of the “save draft” button on our email programs when we are in doubt about sending a message is a sound practice.
A second important feature of email – both an advantage and a disadvantage – is that the message leaves an enduring record. Email messages can be saved electronically or in printed form, and therefore are in some ways more useful than oral communications because they can be reviewed long after they are received. This is also a disadvantage because mistakes and miscommunications sometimes assume an unintended importance and can acquire a life of their own. Email messages can be forwarded to other people, and this feature underscores the wisdom of never sending an email that one would not wish to see published in a newspaper.
Another advantage and disadvantage of email communications is that they are asynchronous. In other words, there is often a significant time lapse between sending, receiving, and responding to messages. More time can mean more potential for misunderstanding, and more time for negative reactions to a message to fester, but it can also mean more time for reflection and for crafting a more thoughtful response.
d. Narrow Bandwidth.
The most significant disadvantage of e-mail communication is its limited ability to communicate meaning and emotion. The research of UCLA psychology professor Albert Mehrabian on the communication of emotion shows that:
Email and other text-only messages force word choice to do much more work than it ordinarily would. In the absence of intonation, facial expression and body language, word choice must be very careful indeed. It is, of course, possible to create a more varied lexicon of emotion in an e-mail communication by using variations of typeface, type size, color, and even images or other attachments. For the most part, however, the haste with which e-mail messages are exchanged impedes our efforts to shade meaning in that way.
One of the problems with a communication medium in which there is little data about the emotional state of the person sending the message is that there is a tendency on the part of the recipient to fill that void with a projection about the intent behind the message. Accordingly, there is often a disparity between intention (which may be positive) and impact (which may be more ambiguous or even negative). 
Especially when a communication is between two people who have an existing cordial professional relationship, it can sometimes cause concern for the recipient of a message that is devoid of the pleasantries and positive non-verbal communications that come with in-person communication. Consider, for example, the following exchange:
“Hi Sam: Thanks for your email with your client’s proposal. I think it will be very helpful in moving the case along. Are you available next week to discuss it? If so, please let me know what would be a good time. I look forward to talking with you. Thanks, Sarah”
“Not available next week”
In this exchange, there is no mistaking the positive emotion behind the first message, but what about the curt response? Was it a rebuff or simply a rushed reply intended to keep the flow of information moving quickly? Is this professional relationship so strong that an occasional hasty reply or inartful response will have no effect, or is this a new professional relationship in which the expression of positive emotion is needed to foster collaboration?
2. Research about Couples
Couples counselors have identified a number of communication guidelines that foster strong relationships, and many of these are useful in the realm of email – for example: 
Anecdotal evidence suggests that these guidelines are useful not only for couples counseling but also for negotiations in the setting of a CP case or a mediation. In addition to such anecdotal evidence, there are now scientific findings that identify a small group of especially robust predictors of success and failure in relationships, and those findings suggest guidelines for email and other modes of communication where the preservation and enhancement of relationships is a goal.
a. The Four Horsemen of the Apocalypse.
One of the leading experts in the area of couples research, Professor John Gottman at the University of Washington, has found that the four most reliable predictors of difficulty in marital relationships are (1) criticism, (2) defensiveness, (3) stonewalling, and (4) contempt. He calls these the “Four Horsemen of the Apocalypse.”  Gottman and his fellow researchers use video tape recordings to study the nuances of facial expression and intonation that suggest the presence of these elements, as well as paying attention to the words spoken by the couple. He and his colleagues have studied the longevity of the couples’ relationships and correlated that data with their initial observations of the couples’ communications, and based on that correlation, they have found that they can predict with 95% certainty whether the marriage will endure for 15 years. 
When one applies these communication principles to email – i.e., avoiding criticism, defensiveness, stonewalling, and contempt – there is an inherent difficulty because (a) email is a medium of communication in which intonation and facial expression are absent, and therefore (b) there is a potential for ambiguity regarding the intentions and emotions of the author of an email message. Thus, in structuring an email message, one should consider even more carefully whether the communication could be interpreted as indicating criticism, defensiveness, stonewalling, or contempt. Consider the following examples:
Of course, criticism of an idea, a proposal, or a party’s action or inaction in a case may be needed and perfectly appropriate. And, as we all know, criticism lands more gently when the criticism is clearly focused on an action or a statement, rather than the person or the person’s mental state. (For example, “your asset-split proposal was lower than what you previously proposed” as opposed to “what kind of lawyer makes a bad proposal and then counters with one that’s even worse?”) Experience suggests that even when a critical message is narrowly focused and avoids personal attack, it is probably best delivered by a more direct means of communication such as a phone call or in-person meeting. By communicating such a message in that way, the speaker can add the reassuring elements of communication that will indicate a desire to maintain a cordial, collaborative professional relationship. In some instances, it may be impractical to rely on more direct means (such as a phone call or a meeting) because the message has to be delivered quickly. Thus, consider how the messages above could have been more skillfully expressed:
The common element in the messages above is the injection of an unambiguously positive emotion or intention. The impact of such elements can be seen in one of the remarkable findings by Professor Gottman with regard to his quantitative analysis of interactions in a relationship. Gottman and his researchers discovered what they call a “critical ratio” of positive to negative interactions in the communications between husbands and wives, and they found that this ratio is a robust predictor of success or failure of marriage. Their research showed that if the positive interactions in a relationship outnumber the negative interactions by a ratio of 5 to 1 or more, the relationship is very likely to endure. But if the ratio is below 5 to 1 – or, worse yet, a negative ratio – the relationship is headed for trouble. 
The positive interactions that the researchers looked for were often simply minor affirmations, validations, humor, pleasantries, or appreciation. The negative interactions involved such elements as anger, complaints, and fault-finding.
If one “unpacks” the content of an e-mail message, one can see the elements that may contribute, even when a critical message needs to be delivered, to an overall positive communication. For example, imagine the following message being sent with no salutation and no signature other than the sender’s identifying information:
“Your most recent proposal is a non-starter.”
It is difficult to tell from that message whether the sender is angry or simply rushed, or perhaps so disgusted by the proposal, the process, and/or the sender that s/he does not wish to devote the energy it might take to explain the reasons why the proposal is unacceptable. The author of this message may want the negotiations to continue or to end – the meaning and intention are unclear. Consider the following alternative version of the message:
“Dear Sam: Thank you for sending me your proposal. I have reviewed it with my client, and she has a number of concerns about it that I would like to discuss with you. I’m wondering if you’ll have any time this week – I know your calendar has been quite full this month. When you have a chance, would you please call me or send me an e-mail so that we can arrange a time to talk. I’m encouraged that our clients are continuing to work toward a collaborative resolution of this matter, and I know that both of us share their strong intention in that regard. I look forward to talking to you sometime soon. Best regards, Sarah Smith.”
In this version of the message, the ratio of positive elements to negative elements is far in excess of 5 to 1. Apart from the comment about “a number of concerns” (negative), there are the following additional (positive) elements:
It may seem like a lot of effort to include all of these elements, but in a medium such as email in which there is such a narrow bandwidth for emotion to be expressed, communication of positive emotion must be intentional and robust in order to be unambiguous. And, after all, a short paragraph like the one above can be dashed off in about a minute or so, and therefore the cost/benefit ratio associated with making the extra effort is likely to be positive.
3. Non-adversarial Communications
Wholly apart from the ratio of positive to negative elements in an email message, there are structural elements that one should consider including. In his book, Non-violent Communication, Marshall Rosenberg articulates four elements for non-adversarial communication: 
Applying these principles to the realm of email, one might structure a message to include all of these elements as follows:
“Dear Sarah: It was good talking with you today. As we prepare for our next four-way meeting about the parties’ business, I have been thinking about the tensions that developed during our last meeting. (Observation) My client told me afterward that both of the parties were expressing strongly-felt emotions that have been part of their business relationship for a long time. (Emotion) What my client wants, more than anything else right now, is a speedy resolution – even if he does not get every dollar that he thinks his interest in the business is worth. (Interests) Would you please ask your client if she is willing to set as a goal for our next four-way meeting the drafting of a term sheet that both parties can live with? (Request) Thanks very much. – Sam Jones
We are all familiar with the distorting effects on communication illustrated by the children’s game called “telephone,” in which a message is passed from one person to the next until it comes back to the original speaker in a form that is not recognizable. In CP, four-way meetings overcome these distorting effects. The increasing use of email communications in CP cases, however, creates a new set of potentially distorting communication effects because, even if all of the links in the communication “chain” can be seen, the sender’s meaning, emotions, and intentions may be less clear. Research from the field of couples counseling suggests that using guidelines of the kind described in this article can help make email communications more transparent and thus a positive adjunct to four-way meetings. Because email is such a new medium, however, the techniques for successful communication via computer may be less intuitive and require more conscious attention. Experience suggests that there is considerable potential in email communications for both misunderstanding and enhanced understanding. As Collaborative Practitioners, we have the added benefit of working on cases with colleagues who join forces with us in trying to achieve a higher level of understanding in all of our communications – in person as well as in cyberspace. By adding more effective email communication to our toolbox, we can achieve higher level of collaboration and thus better results for our clients.
1 Despite this admonition, it seems that shouting a positive message might be a good thing – e.g., “I think your proposal is TERRIFIC!!”
2 For a good summary of those rules, see the guidelines published by the Yale University Library at http://www.library.yale.edu/training/netiquette/index.html
3 For an excellent discussion of this principle, see R. Mnookin & R. Gilson, “Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation,” 94 Colum. L. Rev. 509 (1994).
4 See A. Mehrabian, Silent Messages (1971).
5 I am indebted to Kyle Glover for this observation.
6 I am indebted to Beth Andrews, LICSW, for contributing to and refining this list, which is based on her experience as a couples counselor and her educational programs on communication for couples.
7 See R. Fisher, W. Ury & B. Patton, Getting to “Yes”: Negotiating Agreement Without Giving In (2d. ed. 1991), in which the authors describe interests as the reasons for the positions that people take. For example, if a divorced wife takes the position that her ex-husband “must pay a portion of Junior’s college tuition,” the underlying interest might be either that she lacks the money to pay all of the tuition, or that she thinks it would better for Junior if both parents demonstrate their involvement in his upbringing. Inquiry enables people to determine the specific interest underlying a position.
8 See J. Gottman, Why Marriages Succeed or Fail: And How You Can Make Yours Last 72 (1994).
9 See M. Gladwell, Blink: The Power of Thinking without Thinking 21 (2005).
10 See J. Gottman, Why Marriages Succeed or Fail: And How You Can Make Yours Last 57 (1994).
11 The term “affiliation” – meaning the sense of connectedness between people – is described in the recent book, Beyond Reason: Using Emotions as You Negotiate (2005), by Roger Fisher and Daniel Shapiro, as one of five core concerns that stimulate emotion: affiliation, appreciation, autonomy, role and status.
12 See M. Rosenberg, Non-Violent Communication: A Language of Life – Create Your Life, Your Relationships, and Your World in Harmony with Your Values (2003).
The author is grateful for research assistance by Kyle Glover, a second year law student at Harvard, and editing suggestions from Kyle, Beth Andrews, and Lily Hoffman-Andrews.
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