Have you ever paid an expert bill and cringed? Have you ever dreamed of brushing aside the procedures that bog down litigation, and instead quickly get to the real issues that brought your client to court? Have you ever represented a party who had a legal claim and wanted to preserve its relationship with the party it was forced to sue?
If you answered “yes” to any of these questions, Structured Negotiation is a dispute-resolution process that might be able to help.
What Is Structured Negotiation?
Structured Negotiation is a dispute-resolution method that happens without a lawsuit on file. It is a strategy to resolve legal claims that focuses on solution and encourages relationships between parties—and their counsel. Structured Negotiation trades the stress, conflict, and expense of litigation for direct and cost-effective communication and problem solving.
Structured Negotiation avoids the negative publicity that can accompany litigation and replaces expert battles with respected joint experts. It substitutes round-table discussions for contentious depositions, and it gives clients a seat at the table and a meaningful role in resolving claims.
With roots in the disability-rights movement, Structured Negotiation has potential application to many types of civil claims handled daily by business lawyers.
How Did Structured Negotiation Develop?
Structured Negotiation grew out of the blind community’s quest for financial privacy and access to financial technology. 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, which meant that not a single blind person could use one.
We wrote those letters as an alternative to filing lawsuits under the Americans with Disabilities Act. We offered to negotiate with each financial institution about the development of “talking ATMs” and other services and technology for blind customers. Four years later we had negotiated comprehensive settlement agreements with each bank that produced some of the earliest talking ATMs in the world, compensated our clients, and provided for our attorney’s fees as allowed by civil rights laws. No lawsuit needed.
Joint press releases, beginning in the fall of 1999, heaped praise on each institution and resulted in an avalanche of positive press. Strong monitoring language and a commitment by our negotiating partners resulted in smooth implementation of each agreement.
Buried in the Bank of America 2000 press release was reference to the bank’s agreement to develop and design its online banking platform so that blind people could bank independently on the web. It was the first settlement in the country to address the disability community’s need for accessible websites. (Seventeen years later, on June 12, 2017, a blind shopper of the Winn-Dixie grocery chain won the very first web accessibility trial under the ADA.)
We used a mediator to help us in each of those early cases, but never had to file a lawsuit. The banks saved untold amounts of money, and relationships were built that continue to this day. Had it just been luck? Or had we stumbled on a way to practice law that avoided conflict, saved money, focused on solution, and preserved relationships?
The 18 years since those first agreements have proven that it was not just luck. As my colleagues and I named the process “Structured Negotiation” and began to use it across the country, some of the largest organizations in the United States said “yes” to a new a dispute-resolution process.
Walmart, Anthem, Inc., Major League Baseball, Target, E*Trade, Charles Schwab, and others have worked with my clients in Structured Negotiation to resolve claims under the ADA and related laws. Structured Negotiation with the City and County of San Francisco, the City of Denver, and Houston’s transit agency demonstrate the method’s usefulness in claims against government entities. A Structured Negotiation settlement with the American Cancer Society shows how the process can benefit nonprofit organizations.
These cases involved the civil rights of disabled people to access information and technology in the 21st century. Many of them were about web (and later mobile) accessibility. Today, digital access is a hot-button issue, with a significant number of new court filings and judicial rulings monthly. Structured Negotiation has been helping some of America’s largest companies make their digital content available to everyone since that early Bank of America commitment in 2000. No lawsuits, bad publicity, or run-away costs required.
In 1999, after the early successes with Wells Fargo and Citibank, we named the process Structured Negotiation to emphasize that it was a robust alternative to filing a lawsuit. We knew our early negotiations had been successful because they had a structure, and for the past two decades the elements of that structure have been refined through practice. Those elements are listed here. Elaboration of each element, with stories from cases, can be found in my book about the strategy, Structured Negotiation, A Winning Alternative to Lawsuits.
- A conscious decision by clients and their attorneys to pursue claims resolution without filing a lawsuit.
- An opening letter that invites participation. The language change is deliberate: the first correspondence is not a demand letter in the traditional sense. It can (and often 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. This period includes both waiting for a response and evaluating a response that might be laden with legal jargon and still leave room for negotiation. 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 tolls applicable statutes 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.
- 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. Although used in all three of the first cases, as I learned to be a better negotiator I found I needed third-party help less frequently. Structured negotiation has been referred to by one of my big-firm negotiating partners as “mediation without the mediator.” 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 do not want them to defend past practices? Why say “opposing counsel” if you do not want opposition?
- Development and maintenance of the Structured Negotiation mindset. This might be the most important element of all and maybe the trickiest for most lawyers. Without patience and trust, operating in the absence of the safety net of a filed case can lead to frustration and failure. Grounded optimism, equanimity, and empathy give Structured Negotiation participants needed tools when the going gets tough. In my experience, when appreciation and friendliness infuse interactions, parties can more quickly reach resolution.
Can Business Lawyers Use Structured Negotiation?
Although I have never been a business lawyer, I pose the question: Why not?
- 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. In my book I quote a litigation partner in a national law firm: “I found Structured Negotiation to be fairer to my client than litigation. I like the process because it gives my client the opportunity to do the right thing and avoids costly litigation. And if the negotiation does not succeed, my client has not waived the right to engage in an aggressive, strategic defense.”
- What is the downside of seeing if relationships can be preserved while working out disputes?
- Is your case likely to settle “at the end?” Why not at least try to settle early?
- 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?
It is critically important to preserve the litigation system in the United States, and many times filing a lawsuit is the best and most effective tool for our clients; however, when all you have is a hammer, everything looks like a nail. A filed lawsuit is a hammer. Structured Negotiation is another tool in the tool box.
I hope that business lawyers will find Structured Negotiation a tool worth exploring in appropriate cases. Along with other early dispute-resolution strategies such as pre-suit mediation, Structured Negotiation can speak to a host of client needs. It can offer a winning alternative with a 20-year track record to a public craving litigation alternatives that are cost-effective and preserve relationships. It holds the promise of a strategy that avoids conflict and minimizes stress, encourages trust over fear, and even kindness over anger.
Lainey Feingold (right)
At a book signing event at Harvard Law School Program on Negotiation (left)
Appearing on the Steve Palkin Show on Canadian Public TV during her Toronto book tour earlier this year (below)