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Contract negotiation by e-mail – quick, easy and cheap. Or is it? Tiffany Kemp reveals why what we gain from cost-effective e-communications could be costing us more than we think.

You’re at a critical point in your e-negotiations, everyone’s on edge and that vital e-mail pops up in your in-box. Your counterparty’s offer looks reasonable – but is it too good to be true? You can’t help suspecting that those innocent-sounding words conceal hidden negative meaning…

Email is tougher than face to face

Communicating by e-mail is challenging. It can’t convey emotion or subtlety of intent, and we don’t get the visual and social cues we’re used to when we negotiate face to face. So while we could pick up our counterparty’s humorous intent by their facial expression or tone of voice in a meeting, by email the same statement appears deadly serious.

Negotiation researcher Noam Ebner coined the term the Sinister Attribution Effect1 to describe our tendency to attribute negative interpretations to things we read in electronic communication. So if we receive an email that could be read positively or negatively, unless we have an existing relationship with the sender that strongly biases us otherwise, we will more naturally assume the negative interpretation is correct. 

How does this change of medium affect the way we negotiate? And does it impact positively or negatively on the outcomes we achieve? Now that more and more of us are conducting negotiations via e-mail, it’s vital to understand how to get the best from the medium. There’s good news and bad news here. 

Email negotiations can be win-win

On the plus side, researchers have shown that we are able to create as much value in our negotiations by email as when we negotiate face to face. It takes longer, and we must work harder to achieve a win-win outcome - but it can be done. 

There are, however, many characteristics of negotiating by email that make this harder for us. The power of the Sinister Attribution Effect1 is surprisingly strong, even when our counterparty is known to us. It is so powerful that negotiators may find themselves reading and re-reading an email to uncover the ‘hidden sub-text,’ even where none exists. Because email provides the opportunity for us to carefully consider, review and rewrite our words, our recipient may interpret each one as though it was the product of great thought. 

In reality, most of us only review our own writing through our own eyes. Considering how it could appear to someone reading it from a different perspective is difficult, and does not generally come naturally. The risk that our well-intentioned, determinedly constructive written negotiation could be interpreted as aggressive, unreasonable or arrogant rarely crosses our mind.

How can we tip the odds in our favour, towards positive negotiation outcomes and away from ‘tit for tat’ exchanges?

Building successful email relationships

When you initiate contact with your counterparty by email, relationship building starts straight away, whether you intend it to or not. Your first words matter. Start with a greeting appropriate for the nature and level of the communication, and the cultural expectations of your counterparty. If in doubt, ramp up your courtesy-level to one notch above what you’d usually use – you can always relax your style as you and your counterparty get to know each other.

Seek out opportunities to build rapport. As Robert Cialdini demonstrates in Influence: The Psychology of Persuasion,2 we are more likely to collaborate effectively with people we feel to be like us. Do you have a shared love of football, hockey or chocolate? Have children the same age? Or simply share a desire to complete your negotiations by a particular date? Identify and build on areas of similarity.

Avoid embarrassing misunderstandings

A delegate at one of our Contract Negotiation Masterclasses shared a note of warning about the risks of not being able to see your counterparty. He and his overseas supplier quickly established a shared love of rugby during their email negotiations. Each correspondence began with a quick comment about the latest activity in the rugby world. They built on this common interest to develop a productive and collaborative negotiating relationship that enabled them to generate value for both organizations.

Things changed when his supplier chose to pick up the telephone, rather than email. Hearing a female voice completely threw him: he had assumed, from her love of rugby, that his supplier was a man. Not recognizing the gender-associations of her name, he had seen nothing in her emails to correct this misunderstanding.

His faltering on the telephone, struggling to reconcile the name of his familiar negotiating counterparty with the voice of the woman on the line, damaged their relationship. While they continued to be civil and constructive, the easy camaraderie they had developed during their previous email correspondence had disappeared.

We are fortunate that we live in an age where it is relatively easy to find out about your counterparty online. Use the tools available, such as LinkedIn, the IACCM online forums, company websites and even (if your counterparty is socially minded) Facebook and Twitter, to learn as much as you can. While nobody wants to feel they are being ‘internet stalked,’ understanding the human being on the other end of the negotiation is essential.

A little research can prevent embarrassing misunderstandings, and provide clues about where you may be able to build rapport that will help you in your negotiations. 

Overcome the negatives, build on the positives

As well as encouraging your counterparty to cooperate with you, building rapport serves as an inoculation against the Sinister Attribution Effect1. As your relationship grows, you will be able to be more open and explicit in your requests during the negotiation. And such requests are more likely to be met with understanding, and a search for agreement.

One of the strengths of email is that you have time to carefully consider a response, and seek input from colleagues and other experts. Take time to craft your emails. Invite a colleague to read important mails before sending, to check for ambiguous or potentially inflammatory wording. What’s crystal clear to you may not be clear at all to someone coming from your counterparty’s position.

Colleagues who have been on the other side of this sort of negotiation will be a useful sounding board. Ask them how they would interpret your constructive, value-creating suggestions, if they received such an email. You may find you have to slow down and build your position more slowly by email than you would ideally like.

Information fatigue and misinterpretation

When faced with lots of complicated arguments, we can suffer information fatigue. This can result in us not reading the email fully, and increases the likelihood that we misinterpret or misunderstand key messages. 

In contract negotiation, we are further hampered by legal terminology. Long sentences with many subordinate clauses and references are difficult to parse. Sophisticated and articulate arguments may be impressive. But their value may be lost if they are simply too complicated to follow.

As contracting experts we consider ourselves to be a cut above the average person in our ability to read and digest complex material. But even we who are accustomed to reading legal documents will respond more positively to simple language. Keeping sentences short (less than 15 words on average) makes your writing easier to understand. 

By necessity, your email negotiations may need to cover many related topics. They may have dependencies (“if you… then we…”). It can be difficult for your counterparty to know exactly what you expect from them as a result. To tackle this, summarize long or complex emails, setting out clear decision and action points at the end.

Use indented text, bold fonts, numbering and bullets to break up large blocks of text. Organize your thoughts logically, so that each topic flows into the next. In this way, you will counter the effects of information fatigue and achieve more with each communication.

Beware lies, bluffs and over-statements

Research by Giordiano, Stoner, Brouer and George in 20073 demonstrated that we are more likely to lie, exaggerate, bluff or use hard negotiation tactics when negotiating by email than we are when negotiating face to face.

The emotional distance created by email is akin to what happens when we drive in traffic. It enables us to hide behind the technology, knowing that our counterparty can’t detect our sweaty palms, nerves and sidelong glances. Humans are generally quite good at spotting lies when face to face. We pick up unconscious physical signals, that indicate discomfort. These are much more difficult to identify in written correspondence. 

Bear this in mind when you encounter strong positions in email negotiation. The position may be genuinely held, or it may simply be your counterparty taking a chance on the basis that “If you don’t ask, you won’t get!” Use the techniques below to push around the edges of these positions, and test to see if they’re real or just bluffs. 

Before we know it there’s a full blown dispute 

It’s really easy to find yourself in a ‘tit-for-tat’ email debate. They can start innocently – a passing comment interpreted as a criticism. We respond with a spirited defence of our position. The counterparty senses an attack and rises to the fight. Before we know where we are, there’s a full-blown dispute.

To steer clear of this vortex of doom (which is what it feels like once you’ve been sucked in!), a couple of techniques are available at your fingertips: 

  • If in doubt, ask a question to clarify their intent. Make your question as unambiguous as possible, but surround it with friendly words to avoid sounding aggressive. For example, “To make sure I give you the information you need, I’d just like to clarify my understanding. Are you concerned about our performance in responding to support calls?”
  • If you sense things are heading into the vortex, pick up the phone. A timely intervention by telephone will often clear up multiple misunderstandings and enable you to deal with questions and concerns quickly and efficiently. It also offers good rapport-building opportunities!

3-day Negotiation Masterclass upcoming

Interested in polishing up your negotiation skills? However much you negotiate, it’s always good to take a fresh look at your skills and techniques. If you’re interested in updating your approach to negotiation for the 21st Century, get in touch. Together with negotiation expert and author Keld Jensen, Tiffany will be delivering an intensive three-day Negotiation Masterclass in Copenhagen in September. Click here to find out more. She is also available to deliver tailored in-house contract law and negotiation training programs to commercial and executive teams.

End notes 

  1. Ebner, N., (2007) Trust-building in e-Negotiation. In L. Brennan & V. Johnson (Eds.), Computer-Mediated Relationships and Trust: Managerial and Organizational Effects. Hershey, PA: Information Science Publishing.
  2. Robert Cialdini, PH.D, Arizona State University: Influence: The Psychology of Persuasion (ISBN 978-0-06-124189-5)
  3. Giordano, G., Stoner, J.S., Brouer, R.L. and George, J.F. (2011) The Influences of Deception and Computer-Mediation on Dyadic Negotiations, Journal of Computer-Mediated Communication, 12(2).


About the Author

Tiffany Kemp is the founder and Managing Director of Devant Limited. Her mission is to encourage businesses to use contracts to create better business relationships. She’s passionate about taking the mystery out of legal jargon, translating contract terms into practical commercial risks and opportunities.

Tiffany is a professional speaker and Fellow of the Professional Speaking Association. She has written two books: Deal Makers - How Intelligent Use Of Contracts Can Help You Sell More And Deliver Better, and Essential Contract Drafting Skills - A Practical Guide.

About Devant 

Devant is a specialist commercial contracting consultancy based in England, UK. It delivers practical legal and commercial support, including: 

  • Hands-on contract support, including deal structuring and contract drafting, review and negotiation.
  • Contract law training, through public workshops accredited by the IACCM, tailored in-house training, e-learning, books and articles.
  • Contracting efficiency, through commercial contract audits, contracting process improvement and contract automation.

Don't miss our regular newletter featuring news, events and popular articles from IACCM Members and experts. Subscribe to the IACCM  Contracting Excellence Newsletter 

Tiffany Kemp, Founder and Managing Director of Devant Limited, UK

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Globality’s stated mission is to “give all companies an opportunity to compete and win based on the merits of proven performance, expertise, and passion.”

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