What Is Structured Negotiation?
– Structured Negotiation is used to resolve legal claims that focuses on solution as well as encourages relationships between parties—and their counsel.
– Pioneer of the movement, Lainey Feingold establishes the following elements in an ABA article written by her, when employing Structured Negotiation:
– “A conscious decision by clients and their attorneys to pursue claims resolution without filing a lawsuit.
– An opening letter that invites participation
– 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. Without skillful handling of this element, 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 attorney’s fees, and applicable statutes of limitations.
– A period of information sharing involving written documents, meetings (live, virtual, and/or by phone), and site visits when needed.
– 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.
– Recognizing and dismantling fear through honest conversation and effective listening
– Drafting the settlement, a process that begins cautiously and with joint acknowledgment
that the time is right to formalize commitments.
– Negotiating about money, an aspect of Structured Negotiation to be undertaken with
particular care because it is easy to slip into traditional adversarial lawyering when the
subject is money.
– Use of a mediator when appropriate to guide parties around points of conflict.
– Settlement monitoring, a task made easier by positive relationships developed during the
– Media strategy that avoids negative press releases in favor of jointly issued positive
– Use of collaborative language.
– Development and maintenance of the Structured Negotiation mindset.”
It is a collaborative and solution-driven dispute resolution method
It is possible in cases in which both parties agree to a set of terms prior to going into
Why Chose Structured Negotiation?
– Structured Negotiation trades the stress, conflict, and expense of litigation for direct and cost-effective communication and problem solving.
– It avoids the negative publicity that can accompany litigation and gives clients a seat at the table through a meaningful role in resolution.
– It has practical business applications.
What are the Roots of Structured Negotiation?
– Structured Negotiation emerged when Lawyer Lainey Feingold wrote letters to all major banks on behalf of three groups of blind clients and an advocacy organization, because ATMs weren’t easily accessible or usable by blind individuals.
– These letters were sent as an alternative to filing lawsuits under the Americans with Disabilities Act (the “ADA”). Feingold negotiated services and technology for blind customers at many banks. Four years after that, she negotiated comprehensive settlement agreements with each bank that produced some innovative ATMs, compensated clients, and provided for attorney’s fees as allowed by civil rights laws. In the end, no lawsuits were necessary.
Structured Negotiation in Practice
– Although structured negotiation started in disability law, it has practical applications in business as well. Disability rights Lawyer, Lainey Feingold offers the following questions to think about in deciding to pursue structured negotiation:
o What is the downside of trying a dispute-resolution method that saves tremendous amounts of money? If Structured Negotiation proves ineffective, the litigation route is still available.
o What is the downside of seeing if relationships can be preserved while working out disputes?
o Is your case likely to settle “at the end?” Why not at least try to settle early?
o Would you rather give up control and prove to a judge that your client is right, or
put aside legal differences and get to the heart of the matter?
Examples of Structured Negotiation
– Structured negotiation was used to convince Walgreens, CVS, and Caremark to create accessible prescription bottles for blind or low vision customers. Lainey Feingold has also worked with Major League Baseball, Anthem, and E-Trade to create strategies and guidelines for more accessible practices.
– Per The National Federation of the Blind and Lawyer Brown Goldstein
– Walmart, Anthem, Inc., Major League Baseball, Target, E*Trade, Charles Schwab, and others have worked with Feingold’s clients in Structured Negotiation to resolve claims under the ADA and related laws.
– She orchestrated a Structured Negotiation with the City and County of San Francisco, the City of Denver, and Houston’s transit agency, which show how it may be useful in claims against government entities.
– A Structured Negotiation settlement with the American Cancer Society showed how the process can benefit nonprofit organizations too