Back in 2005, researchers at (among other institutions) Columbia, the University of Texas, and Microsoft began to look at certain types of new-fangled communications technology (email and instant-messaging) and wondered whether it mattered which medium one used when negotiating complicated agreements.
So they conducted an experiment. They took a bunch of business students from Stanford and Northwestern, and they told them to negotiate selling a car. They made half of the students buyers, and half sellers. They gave each pair eight issues to negotiate (including price, color, trim, and warranty specifications), and confidential instructions about how much they valued each issue. They gave half of the sellers simple arguments they could use to bluff a buyer who asked for a yellow car (coincidentally, all of them), and half more complex arguments. And they told half of the pairs to negotiate by email, and half by instant message.
The result: sellers who used instant messaging and intricate arguments enjoyed a much greater advantage than sellers under other conditions. Or, as the authors put it:
The ideal argument is one that is hard to rebut, of course, and what we have demonstrated is that an argument’s effectiveness is influenced by conversational dynamics in addition to its content. The communication medium one uses to negotiate supplies expectations about turn-taking tempo, and consequently how long one has to respond. While a simple argument was ineffective regardless of communication medium, we found that an intricate argument was effective if there were expectations of a rapid turn-taking tempo (generated by communicating with Instant Messaging), but was ineffective when there were only vague expectations about turn-taking (generated by communicating with E-mail). Thus one not only needs to craft good arguments, one also needs to be able to apply them fluently. Being at a loss for words can mean being at a loss for dollars.
In other words, conversational media (like instant messaging, telephone conversations, and face-to-face meetings) may favor fast talkers.
What does this mean for negotiation of class-action settlements? Classwide settlements already tend to involve complex issues, many of which involve the intricacies of Rule 23(e). While many lawyers pride themselves on their persuasive abilities, it may be best to use devices that disrupt conversational rhythms (like correspondence and mediation) if one wants to neutralize the effects of the other side’s fast-talking.