May 2018

Can structured negotiations replace lawsuits?

In 1994, Berkeley, Calif.-based disability rights lawyers Lainey Feingold and her colleague were contacted by a blind lawyer who was concerned about the lack of accessibility to ATM machines for the blind. At the time there was no case law about the lack of accessible ATMs for the disabled. But we thought this was a really good issue because blind people should have access to their own money. We said we should file a class action,” said Feingold.

But that lawsuit was never filed because out-of-the-box thinking during discussions on how to proceed produced a roadmap that began with the lawyers writing letters to Bank of America, Citibank and Wells Fargo detailing the problem and asked for a meeting. “To our surprise all three banks said yes,’’ Feingold said. “We spent the next three or four years working with those banks in a process that did not yet have a name. At the end of those negotiations, we had developed ATMs that were accessible to blind people. And we resolved the claims without the conflicts and costly expense of litigation.” Because of those and subsequent negotiations, today there are talking ATMs, accessible websites, braille, large print, raised line checks and other aspects of online banking providing access to the disabled.

And so was born structured negotiation, a collaborative and solution-driven dispute resolution method. Structured negotiations are possible in cases in which both parties agree to a set of terms, including monetary, prior to going into negotiations.

Feingold was a panelist on the ABA-sponsored webinar entitled, “Structured Negotiation: A Winning Alternative to Lawsuits.” She wrote a book by the same name published by the ABA last year.

In the 20 years since those first negotiations, Feingold says she has handled about 75 cases with such noted entities as Walmart, Major League Baseball, Anthem, American Express, E*Trade, Weight Watchers and others.

Structured negotiation is not necessarily the best and only way to handle a case, but Feingold offers it as an option. And while her cases deal exclusively with disability rights, she and co-panelist, Kristina Launey, a labor and employment attorney with Seyfarth Shaw LLP in Sacramento, Calif., believe structured negotiation can be applied to other areas of law.

“Litigation plays a crucial role in enforcing rights and sometimes it is the best or only option,” Feingold explains. “But sometimes when all you have is a hammer, everything else looks like a nail. So often people don’t think about other options in the process.”

In her book, Feingold breaks structured negotiation into seven stages and includes what she calls bookends. “In the beginning, I talk about language and tone and I close with talking about mindset,” she explains. “You don’t want to use words like opposing counsel or defendant because you don’t want people defending positions but thinking of solutions. And mindset is the final chapter because all along the way you must have an attitude of cooperation or the process isn’t going to work.”

Stage One: Getting started

Feingold’s cases have mostly dealt with disability rights, but have crossed over into technology (ATMs, websites, etc.). But claims can also come from the private sector, public sector and nonprofits. Launey says when preparing for the case, you must make sure that the players are ready for a collaborative practice. “Everyone must have an understanding that it is going to be different from a litigated case; the pacing, the timing is all going to be different.”

The opening (not demand) letter should be inviting and non-accusatory. “Language and tone are so important,’’ Launey says. “You want to describe the conduct that needs to change but not labeling past behavior, not accusing the company of being a terrible company but that you want to see changes going forward.” Getting a response to the letter can take weeks or months. “While you’re waiting, be actively patient, which means don’t sit around and do nothing but come up with a due date. The week before that date, contact the company to see if they got the letter. If not, send it again,” she says.

Stage Two: Ground rules

Timing of when to send the company ground rules for the negotiation is crucial, Feingold says. Send it too soon, and you might scare the company into thinking they have to sign some legal agreement that could put them on the defensive.  The Ground rules should include topics for negotiation, statute of limitations and confidentiality provisions, among others. Getting the ground rules document signed could take a long time.

Stage Three: Discovery alternatives

How do you share information without discovery rules, depositions or courts to fall back on? “You look for information that helps everyone,’’ Feingold say. “That’s the beauty of structured negotiation. We can work together as parties to a case with a problem and determine what information do we all need to resolve this?” The goal of structured negotiation meetings at the beginning of the process is to develop relationships and to outline the purpose of the meeting. Determine who needs to attend, lay out the agenda and define roles. And, it’s a meeting where the lawyers can take a backseat, which allows the parties to be more honest and get to know each other better, Feingold says.

Stage Four: Moving the negotiations forward

Get an understanding with clients early on that one of things you might be doing is agreeing to small steps. “Yes, we wanted 1,000 ATMs, but we were happy to get five to get the process started,” Feingold says. “Part of the process is to recognize small steps along the way to bigger results.” Launey says companies are also comfortable with interim steps. “Quite often companies are faced with an all-or-nothing perspective and it’s just not possible,” she says. “So, the willingness to break things down into more manageable increments both from just a feasibility, personnel and budget perspective makes a huge difference and helps get things down with companies that otherwise would be nonstarters.”

Stage Five: Expect the unexpected

Always expect the unexpected, Feingold and Launey say. Because of the relationships built through structured negotiation, there is a process of trust already in place to handle new issues and integrate new people into the process without having to ask a judge’s permission and without filing papers. “This is an important step because in the monitoring you will raise issues from new people who were not party to the agreement and weren’t the original claimants,” Launey says.

Stage Six: Drafting the agreement

The timing in drafting an agreement is important because there are no court rules to tell you when to do something. You can include a time limit, though Feingold is not a proponent of them “because it can create false hopes.” To get started, she proposes sending a term sheet, which should be broad-based. The agreement should also include damages and attorneys’ fees. “It’s harder for people to talk about money than it is about injunctive relief and it is a real important area to stay calm, be reasonable, be trusting and look at the facts of the case,” Feingold cautions.

Stage Seven: Post-settlement strategies

The case isn’t over once an agreement is signed, especially in an injunctive case, Feingold says. In post- settlement, there are monitoring strategies like foundation in agreement, enforcement options, extending the agreement. She adds that an often-overlooked area is developing a media strategy. “Unlike in so many traditional litigation cases, you don’t do negative publicity at the beginning of the process, but you want to talk about your success at the end,’’ Feingold says.

The webinar was sponsored by the ABA Commission on Disability Rights; Division for Public Services; Section of Dispute Resolution; Section of Litigation; Solo, Small Firm and General Practice Division.

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