Barrister and mediator Paul Sills continues his series, Better Conversations. In Part 3, below, he explores how to avoid potentially offensive emails to ensure an open exchange of ideas and to solve the underlying problem. Read Part 1 here and Part 2 here.
Why is it that when we send a carefully crafted settlement letter explaining why we are right and the other side wrong, the other party does not simply agree with us and settle on our terms? Might our choice of language prevent a reply that leads to an open exchange of ideas about how to solve the underlying problem? Why do so many emails and text messages offend the recipient and lead to an escalation of the dispute?
The answer lies in the mode of communication and the default language we use. The eminent mathematician and philosopher Kurt Godel wrote:
“The more I think about language the more it amazes me that people ever understand each other.”
We need to think more about the tools and methods we use to share our views effectively. Let’s start with our choice of language.
Language
The language of power – emphasises enforcement and seeks obedience. Typically consists of pronouncements or commands, such as “You must, You shall”.
The language of rights – speaks to rules and regulations, policies and procedures, legislative definitions and, sometimes, morality. Often includes judgment statements such as “You should…, You ought to…”
The language of interests – includes open-ended questions, encourages public dialogues and consensus decision-making with more collaborative statements, such as “You could… You might consider…”
The language of curiosity – a willingness to ask questions to which we do not already know the answer “Why…” “What…” “How…” “When…”. If we are curious we better able to explore what might be possible.
In dispute resolution parties typically use the languages of rights and/or power, which are more absolute and less likely to invite cooperation. We seldom use the language of interests, and even more rarely the language of curiosity.
Context
Context provides vital information about every message that is conveyed. The most accurate understanding of context occurs when the speaker and listener are present in the same place and engaged directly in the conversation. The context in which we communicate tells us what we really need to know about the conversation, the other person and the message. The words are only a part of that – the message will actually involve some or all of the following:
Express meaning –what is the literal meaning of the words used?
Intention: What does this speaker intend to communicate to this listener?
Awareness: What is the listener‘s level of awareness regarding what is being said?
Understanding: How much does the listener actually understand?
Acceptance: Which parts of the communication does the listener accept or reject?
Medium/Process: How was the message communicated? What was the tone, energy level or body language?
Systemic Context: What is the impact of the family, organisation, social, economic and political context, structures and systems?
Relationship: What is the relationship and history between the parties?
Emotion: What is the emotional state of the parties and how has it influenced their speaking and listening, directly and indirectly?
Culture: How have cultural norms and ideas influenced the communication, including definitions of what is acceptable behaviour.
Letters exchanged by warring parties struggle to capture any of the rich context of the dispute and the relationship between the parties. It is easier to rely upon statements of power or of rights.
This issue is exacerbated when we use instant forms of communication like emails and messaging systems. While it may seem efficient to conduct all of our conversations via these distant and abbreviated forums, these methods provide even less contextual information and are more likely to be misunderstood. This is particularly so when the parties do not have an established personal relationship where knowledge of personality, history, etc may provide context to bare words. However, dispute resolution discussions are often between relative strangers, or between parties that were close but have grown apart.
Another issue with abbreviated written messages is that they enable passive/aggressive tendencies. Everybody can be 8 foot tall and bullet-proof when sending a text or email. It is easy to “speak” in loud assertive tones on email or text with little or no thought about long-term aims or strategy, and knowing that you need not deal with other party’s response. When we send immediate replies to messages we disagree with we normally do so subjectively, which can see the “conversation” (and therefore the dispute) spiral out of control in minutes. I have seen 20 year business relationships fall apart after 7 minutes of emails sent at 11 p.m. at night.
The art of conversation is best practised, and most effective, when those involved in the discussion are sitting in the same place at the same time and talking to each other with openness and curiosity. We seem to avoid that situation as much as we can these days and have convinced ourselves that an email or text is more efficient and effective while still “getting the message across”. We have lost sight of the value of context and the importance of non-verbal cues to assist our understanding of the conversation.
Important conversations are best held in person. This has always been true, and cannot be replaced with instant access 24/7 communication tools. This is particularly important for parties in dispute who need to be clear, precise and considered in what they say to each other.
Paul Sills is a barrister with over 20 years’ experience working in global litigation markets. Paul is also an accomplished business leader, having been involved in a diverse range of companies (as CEO or director) including the marine industry, global health care and international freight. Paul has been engaged in mediations both as a legal advisor and as a client since 1995 and as a mediator since 2010. These have included multi-parties and complex issues surrounding Treaty of Waitangi settlements, aviation disasters, leaky homes, construction and receiverships. With a unique understanding of the challenges businesses and individuals face and drawing on his years of commercial and legal experience, Paul provides timely and cost-effective solutions for his clients. Paul’s appointments include Associate Member of AMINZ, a member of the panel of mediators for the Marine Industry Association, Triathlon NZ Age Group Adjudicator for 2015 and 2016 and a member of the panel of mediators for the New Zealand Law Society. Paul is approved to assist with the Society’s Early Resolution Service, as well as standard track mediations. As a barrister Paul maintains both an active commercial litigation practice and a comprehensive mediation practice. Contact Paul at paul.sills@paulsills.co.nz or connect via Twitter 
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For more information visit Paul’s website https://paulsills.co.nz/
