Tired of Being a Shark? Structured Negotiation Offers an Alternative

The second edition of my book, Structured Negotiation, a Winning Alternative to Lawsuits, adds two new quotations from business lawyers. I’m proud of those quotations because they confirm that the way I’ve practiced law for a quarter century as a disability civil rights lawyer has value to lawyers and clients on all sides of the table.

Structured Negotiation is a collaborative way to resolve legal claims. Born at the intersection of technology, disability rights, and dispute resolution, the method has been used for twenty-five plus years to resolve disability rights and other claims. In my own practice, I’ve used the strategy to advance digital accessibility—the civil right of disabled people to participate in the digital world.

Structured Negotiation has allowed me to bring together my clients and some of the largest organizations in the country to build relationships, solve problems, and resolve legal claims. All without lawsuits. Yes, Structured Negotiation is a dispute resolution strategy that has helped me avoid the courthouse, the deposition table, and the expert battles for decades.

Why Structured Negotiation

The process is called “Structured” Negotiation because it is comprised of building blocks that have brought win-win results in the disability community’s cases with dozens of public and private organizations including Walmart, Bank of America, Houston’s public transit agency, and CVS. Those building blocks include:

• writing an invitation to negotiate instead of a harsh demand letter
• negotiating ground rules (that replace court rules) for the collaboration
• sharing information without formal discovery (or discovery battles)
• meetings that build relationships for long-term results that stick
• using joint experts and relying on client skills and knowledge to bring needed expertise to the process
• drafting a settlement agreement without posturing
• a media strategy that does not attack potential negotiating partners at the outset, but waits for a positive resolution for a shared announcement
• monitoring commitments with flexibility to account for the unexpected

These elements of Structured Negotiation have helped my clients and our negotiating partners achieve results without lawsuits. And in the past few years, other lawyers have used the Structured Negotiation building blocks with a lawsuit on file to reduce the animosity, reputational damage, and excessive costs seemingly built into the United States litigation process.

But none of these elements would work—either outside of or within litigation—without the secret sauce of Structured Negotiation: a collaborative mindset. The Structured Negotiation mindset, and the language that accompanies it, are essential to successfully resolving claims outside the litigation system.

I often refer to the elements of the mindset as dolphin skills. Why? To emphasize that being a shark is unnecessary. Being a shark limits the possibility of collaboration. And in my experience, being a shark often makes lawyers miserable.

What are the dolphin skills that comprise the Structured Negotiation mindset?

• Active patience and equanimity
• Good listening skills and not making assumptions
• Understanding and dismantling the fear that prevents so many people and organizations from resolving claims in efficient ways
• Transparency and trust

These qualities can be learned, just as lawyers have long learned that aggression, hiding the ball, and mistrust are tools of the trade. I’m sure of this because I have learned (and am still learning) these skills with each new case I resolve in Structured Negotiation. Read more about dolphin skills in Structured Negotiation.

What about language?

Did you know that the French root of the word “plaintiff” means “wretched complainer”? Should “defendants” always have to defend instead of problem solve? Do lawyers representing different parties always have to oppose each other wearing the hat of “opposing counsel”? When you want something of someone, is it helpful to demand it in a terse letter, or invite participation in a collaborative process?

As the stories I share in my book reveal, in Structured Negotiation every communication (email, meetings, phone calls) is made with a collaborative intent. And that means language choices matter. Language that invites cooperation is a fundamental building block of this dispute resolution method.

What do business lawyers say?

Back to the two business lawyers whose quotations are mentioned earlier. One quotation comes from Brian Frumkin, Associate General Counsel at Bank of America. Brian has been involved in many Structured Negotiations with Bank of America and my clients over the past 21 years. (The very first web accessibility agreement in the United States in 2000 was the result of a Structured Negotiation between blind customers and the bank.)

Brian Frumkin’s quotation in the second edition of my book came from his remarks at a 2019 gala at which Bank of America received an award from a disability rights organization. In his speech, he said:

Bringing the collaborative approach to my practice has, I think, made me a more effective lawyer and, perhaps, a happier person.

The second quotation is from Priya Sanger, who was Deputy Legal Counsel at Patreon during a 2020 Structured Negotiation with that company. Start-ups, Sanger explained:

are mission-driven. As a rule, we tend never to have enough people or money to meet our big visions. Start-ups are solution-oriented. When we identify a problem, we want to get it fixed quickly and cost-effectively, with a focus on people. We don’t like spending money on litigation. These qualities make Structured Negotiation particularly well suited for our type of business.

[With Patreon] Structured Negotiation quickly brought the right people to the table and the process created room to educate teams on the value of adding disability awareness and inclusion in the digital space.

Sanger and Frumkin’s words underscore the value of Structured Negotiation to both business lawyers and their clients. In writing my book I interviewed many other lawyers who represented companies in Structured Negotiation. They too shared similar views on the value of Structured Negotiation to both themselves as lawyers and to their corporate clients.

Structured Negotiation is of course not suited for every dispute. But in many cases, there is nothing to lose (and much to gain) by trying it. Michael Bruno is a defense lawyer who has worked in Structured Negotiation. As he says in my book:

In court, discovery cut-offs, motion deadlines, and sometimes judges themselves force the parties to take expensive depositions that may be of little utility. 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.

I love hearing about how lawyers have used the tools of Structured Negotiation to advance their client’s interest with collaboration instead of conflict. If you try it, please let me know!