Florida mediator discusses conflict by email Part 2

Part 2 of 2: For the first part of this post, please click here.


Emails are useful when you need a record of an interaction, when the conflict rates relatively low on an emotional scale, and to set up meetings or phone calls to deal with conflicts. It is best not to use emails in the midst of a conflict if you have never met the person, the emotional level is high, or when you have had multiple email exchanges regarding a particular subject.

Shareholder Michelle Jernigan

Email follow-up can be very useful for mediators. When a case does not resolve at the mediation table, a mediator may choose to email the parties to summarize the parties’ positions and the status of the negotiations. Email is also useful to communicate proposals between the parties.

These types of communications become more negative than positive when lawyers begin to engage in conflict through the use of emails. If you are working with opposing counsel through email and the communications begin to go sour, consider the following options:

• If you think the communication is inaccurate or mischaracterizes a situation or a prior conversation, delay in your response. It is too tempting to react emotionally and press “send”.

• If you believe you must respond by email, wait until you have calmed down and have had an opportunity to reflect on the communication. In the alternative, try picking up the phone and conversing with your adversary to see if you might have misinterpreted the message. This also will give you an opportunity to convey your message with less risk of misinterpretation. If you reach a verbal consensus, then you can confirm that by email if you desire.

Always give people the benefit of the doubt. This will be very challenging if you have had conflicts or difficulties with that person in the past. Always take the high road in your email correspondence. If you want to have an argument with opposing counsel, do it by phone or in front of the judge. Once you put something negative in an email it can be read by the recipient over and over again, so that a damaging statement becomes a continuing insult.

Email is not the best way to engage in conflict. A face to face discussion with opposing counsel would be your best bet. Meet for coffee or even for a drink. Sit at a round table. Engage in informal conversation, make eye contact, shake hands and be willing to listen to the other lawyer’s perspective. Recognize that you can disagree, but do so agreeably. You may think your perspective on something is superior to that of your adversary, but you still can demonstrate civility and respect.

Always try to avoid making the dispute personal. Once you do that, you have completely lost your objectivity. If all else fails, do what we do – give them chocolate chip cookies.

Questions about conflict by email? Contact Ms. Jernigan at mjernigan@uww-adr.com.