A litigation analysis found that lawyers used telephone negotiation in 72% of the cases studied, resulting in settlement only 35% of the time. That means that phone negotiation sessions or other processes had to be used multiple times to get to settlement. We can assume that repetition resulted in a loss of time and money for the participants.
In contrast, mediation resulted in resolution 100% of the time in the studied cases. Yet, lawyers used mediation in only 2% of the cases.
Here are some of the problems with telephone negotiations:
Lack of Visual Information
You can’t share documents or other visuals over the phone. Even if all participants to the call are supposed to have the documents in their possession, you can’t be positive they are actually looking at a document, even if they say they are, or if it’s the right one.
Body language provides visual cues to the negotiator about how things are going. Facial expressions can show surprise, anger or anxiety as parties exchange information. You can’t look someone in the eye over the phone. Without the visuals, it may be easier for people to dissemble. Likewise, over the phone you are unable to enhance your own message with gestures or other body language. In mediation, the mediator interprets participants’ body language to better facilitate negotiation.
See also: Work Comp: Mediation or an ‘Informal’?
Getting Negotiators to Pay Attention
Listening is hard work. When negotiators use the phone, they may not be focused. There could be active interference, e.g., flashing lights and text messages on the phone, incoming emails, other notifications from multiple devices or co-workers coming by. Even without those distractions, people’s attention may drift.
Technology Can Get In the Way
What about using Facetime, WhatsApp, Skype or another video call utility? Theoretically, this could overcome some of the deficits of voice-only negotiation. On the other hand, have you seen the hilarious Tripp & Tyler video about video conference calls? Even when the technology is working perfectly, body language can be difficult to interpret or convey through video.
It’s true that video conferencing might be helpful during mediation if, for example, the adjuster or injured worker is in another state and unable to travel to the mediation, assuming the principal negotiators are physically present.
See also: Tips on Mediation in Workers’ Comp