The article posted here by Lainey Feingold first appeared in the July 2017 issue of Just Resolution E-News, a publication of the Dispute Resolution Section of the American Ban Association. It tells of the significant similarities between Structured Negotiation and Collaborative Law, two dispute resolution methods focused on cost-effective problem solving without litigation.
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Structured Negotiation: Collaborative Law’s First Cousin
Did you know that Collaborative Law has a first cousin? It does. The relative’s name is Structured Negotiation and it was born from the blind community’s quest for independence in the early years of the Americans with Disabilities Act (ADA).
In 1995 my co-counsel and I wrote letters to Bank of America, Citibank, and Wells Fargo on behalf of three groups of blind clients and an advocacy organization. The issue was ATMs: not a single one in the United States talked. This meant that not a single blind person could use an ATM; the proliferating tool of financial privacy and convenience.
We wrote those letters as an alternative to filing lawsuits, offering to negotiate with each bank about the development of Talking ATMs and other services and technology for blind customers.
We chose letters over lawsuits not because we didn’t have a strong case against each bank. We did. It was five years after passage of the ADA, and there was no factual dispute about the lack of access to ATMs. Our client groups included a lawyer, an international activist, a teacher, technology innovators, and an engineer. None of them could get $20.00 of their own money out of an ATM without help. They would have made powerful plaintiffs.
But the ADA was untested, and the desired technology didn’t exist. We thought a problem-solving negotiation would make more sense than arguing before a judge about procedural points, technology, and the scope of a new civil rights law. Much to our surprise, each bank said “yes” when invited to negotiate.
Those “yesses” started a journey that four years later resulted in legally binding settlement agreements with all three banks. After collaborative meetings (no depositions!), visits with our clients to ATM labs (no motions to compel!), and sharing relevant documents (no interrogatories!) all three banks installed some of the world’s first Talking ATMs.
Bank of America’s agreement was also the first in the United States to address web accessibility, guaranteeing that disabled people have access to what was then a brand new financial technology — online banking.
Clients in all three cases received reasonable payments as allowed by state law, and my co-counsel and I were paid reasonable attorneys’ fees under the ADA’s fee-shifting provision. No lawsuits needed. And instead of receiving bad publicity that likely would have accompanied court filings, we jointly issued positive press releases announcing new ATM technology and commitments to blind customers.
Without knowing it, those “yesses” also launched a new dispute resolution process. With the success of the first three Talking ATM cases, blind people from around the country began calling us. They wanted Talking ATMs in their states. They asked us to work on web accessibility as more and more aspects of daily life moved online. And they were excited to participate in a legal process that avoided the courthouse entirely.
Maybe we had just been lucky with Bank of America, Citibank and Wells Fargo. Or maybe we had stumbled on a way to practice law that avoided conflict, focused on solution, and preserved relationships. We decided it hadn’t been just luck, and that we needed a name for what we had done.
First choice for a name? Collaborative Law.
Why Structured Negotiation? Why not Collaborative Law?
The pioneers of Collaborative Law had selected a great name. “Collaborative” is a term with a sense of joint effort and stakeholder input. Cooperative problem solving instead of losing control to a third party judge or arbitrator. Less conflict, more conversation. Focused on family law, I was hoping the name might also work to identify what we had done. But after a little research I realized it wouldn’t.
The mandatory withdrawal clause wouldn’t work for our cases.
The mandatory withdrawal clause (preventing lawyers from continuing representation in court if negotiations fail) has served Collaborative Law practitioners well. It has been an effective tool for keeping people around the negotiating table in family law cases, and can be useful as the process spreads into other areas of civil law.
Yet in the context of complex policy and technology cases under fee-shifting statutes, many of which take several years to resolve, we could not abandon the possibility of going to court if a negotiation failed. Our clients would not be served if we did. We hadn’t needed one in the early ATM cases to keep the parties at the table.
Our first naming-choice unavailable, we hit upon calling our fledgling process Structured Negotiation. As I write in my book, Structured Negotiation, A Winning Alternative to Lawsuits:
Without a complaint on file, we had engaged in negotiation with a certain kind of opening letter, a defined ground rules document, and a non-adversarial way of sharing information. We had found a cost-effective and productive method for introducing expertise, one that honored the knowledge and experience of our clients as well as traditional experts. And we had intentionally adopted an attitude of collaboration in doing our work. The early bank cases had evolved into negotiations with a particular structure. Structured Negotiation. Structured Negotiation, A Winning Alternative to Lawsuits
My co-counsel, clients and I went on to use the term – and refine the process – in dozens of cases. Since those first agreements in the late 1990’s, some of the largest organizations in the United States said yes to a new method of dispute resolution without lawsuits, unwarranted conflict, or run-away costs.
Structured Negotiation settlements were negotiated with Walmart, CVS, Walgreens, and others about talking prescription labels so blind people can know what is inside their medication containers. American Express and the American Cancer Society negotiated agreements about information in formats blind people can read.
Negotiations with the City and County of San Francisco and Houston’s transit agency taught that Structured Negotiation is effective with government agencies. Major hospitals on both coasts (including Kaiser and Massachusetts General Hospital) negotiated comprehensive cross-disability agreements to improve services for patients and visitors. And Major League Baseball said yes to Structured Negotiation with blind baseball fans, becoming a leader in digital accessibility.
Elements of Structured Negotiation
Our initial idea that we were negotiating with a particular structure proved accurate. As time went on, we further distilled the elements of that structure, thereby making the process available to people in other fields of law. As I learn more about Collaborative Law, I realize that these elements infuse that process too, solidifying the idea that the two dispute resolution methods are indeed first cousins.
Here’s a lightening tour through the elements of Structured Negotiation. Elaboration of each element, with stories from cases, can be found in the book.
- A conscious decision by clients and their attorneys to pursue claims resolution without filing a lawsuit.
- An opening letter that invites participation. It should even say something nice about the recipient while calmly describing the legal and factual basis of the claims.
- A period of uncertainty when all counsel begin communications about both the claims and the dispute resolution process, and would-be defendants determine whether to participate. (Yes – I identify this time of uncertainty as a Structured Negotiation element because without awareness of it, skill in handling it, and patience, a Structured Negotiation can fall apart before it begins!)
- A ground rules document signed by all parties that identifies negotiating topics, preserves confidentiality, protects statutory rights to damages and attorneys’ fees, and tolls applicable statute of limitations.
- A period of information sharing involving written documents, meetings (live, virtual, and/or by phone) and site visits when needed. Meetings take a “show don’t tell” approach with a constant subtext of forming and maintaining relationships. They allow clients to have a meaningful seat at the table and are the cornerstone of the most successful Structured Negotiations.
- Sharing expertise (most often via joint experts and client participation) in a manner that avoids expert battles and run away costs and values client contributions.
- Taking baby steps toward resolution. Pilot programs, interim measures, and partial agreements before final resolution have been key to many successful negotiations.
- Recognizing and dismantling fear through honest conversation and effective listening practices.
- Drafting the settlement, a process that begins cautiously and with joint acknowledgment that the time is right to formalize commitments.
- Use of a mediator when appropriate to get past stumbling blocks or guide parties around points of conflict. Structured Negotiation has been referred to by one of my big firm negotiating partners as “mediation without the mediator” because most often direct communication in a collaborative environment is all that is needed to get to the finish line. But parties should not be afraid to use a mediator when third party help might be useful.
- Settlement monitoring, a task made easier by positive relationships developed during the process. Skillful and direct communication among parties and counsel typically make court enforcement unnecessary even when implementation does not go as planned
- Media strategy that avoids negative press releases in favor of jointly issued positive statements.
- Use of collaborative language. Structured Negotiation avoids terms that detract from an environment of problem-solving. Why call someone a “defendant” if you don’t want them to defend past practices? Why say “opposing counsel” if you don’t want opposition?
- Development and maintenance of the Structured Negotiation mindset. This might be the most important element of all. Without patience and trust, operating in the absence of the safety net of a filed case is likely to bring frustration and failure. Grounded optimism, equanimity, and empathy give Structured Negotiation participants needed tools when the going gets tough. And when appreciation and friendliness infuse interactions, the parties can more quickly reach resolution.
I hope these Structured Negotiation elements will resonate with Collaborative Lawyers. I welcome feedback from Collaborative Law practitioners about how we can share experiences and strengthen both processes.
The public and the legal profession are craving alternatives that are cost-effective and preserve relationships. That avoid conflict and minimize stress; encourage trust over fear, kindness over anger. Lawyers and clients alike seek alternatives that allow creative solutions to emerge.
Part of the same family, Structured Negotiation and Collaborative Law offer all this and more.
About the Author
Lainey Feingold is the author of Structured Negotiation, A Winning Alternative to Lawsuits, published by the American Bar Association in 2016. The book provides a step by step guide to Structured Negotiation for advocates and lawyers looking for an effective strategy to resolve legal claims. It tells the stories of those first ATM cases and dozens of other disputes successfully handled in Structured Negotiation. Lainey Feingold is a disability rights lawyer and a frequent speaker about Structured Negotiation and digital accessibility. In 2017 she was the individual recipient of the John W. Cooley Lawyer as Problem Solver award, given annually by the Dispute Resolution Section of the American Bar Association. She has also twice been recognized with a California Lawyer Attorney of the Year (CLAY) award (2000 and 2014).