DON’T read this post if you have had a productive and satisfying day as a lawyer. DO read this post if you just hung up from a corrosive phone call with opposing counsel who was unwilling to agree to an extension so you could attend your kid’s graduation. DO read this post if you spent today drafting some soul-sucking interrogatory objections sprinkled with a few vague responses. DO read this post if you have wondered lately whether you can stand to watch the battering that your client takes in the litigation process even when you get her a favorable result in the end.
It turns out there is another way. My friend and colleague, Lainey Feingold, has recently published “Structured Negotiation: A Winning Alternative to Lawsuits” which provides a step-by-step guide for solving complex legal problems without the acrimony and wastefulness of arcane jurisdictional motions and hide-the-ball discovery practice. Lainey and attorney Linda Dardarian (also a friend and colleague) developed and refined the methodology over 20 years negotiating agreements to enhance the accessibility of technology for individuals who are blind or visually impaired.
Structured Negotiation starts with an “invitation” sent to a corporation or public entity to engage in negotiations to address a “claim” for a “claimant” (no plaintiffs or defendants here!). While the invitation intentionally avoids any traditional demand or threat of litigation, it provides a powerful recitation of the legal and factual basis for the claim, which implicitly conveys that litigation is in fact the alternative. Once the invitation to negotiate is accepted, ground rules are set and then, together, the parties set out to negotiate a solution to a problem, which is ultimately memorialized in a written agreement.
Lainey explains the approach in clear and well-organized chapters, with illustrations from dozens of successful negotiations against major banks, retailers, and even Major League Baseball. One of the rewarding “sub-plots” of the book is the fascinating evolution of accessible technology over the past two decades for those who are “print-disabled.” She explains how “talking ATMs,” accessible websites and audio description for movies have become state-of-the-art methods for corporations to better serve all of their customers.
Another plus of Structured Negotiation is that clients can play an active, and at times primary, role in the process. My favorite vignette in the book describes the inside of an ATM technology lab where a corporate development team observed her clients with visual impairments test out proposed technology fixes. One can perfectly picture the faces of those engineers turn from anticipation to disappointment, as they watched their great ideas crash and burn in real-world testing. Her clients not only demonstrate technical issues for the other side but they also explain why they will not accept solutions that compromise their ability to navigate the world independently despite their disability. None of this type of productive give-and-take could occur in the context of discovery or expert reports.
As the book illustrates, Structured Negotiation is particularly well suited for cases in which complex injunctive relief is the goal. But the manual also provides useful instruction on negotiating money damages as well as a method for ensuring that counsel can secure attorneys’ fees for their work under fee-shifting statutes. (I’m guessing some of you have been reading along and wondering about that.) Lainey recognizes that Structured Negotiation is not suitable for issues where a judicial precedent is both necessary and the ultimate litigation goal, such as with the recent fight for same sex marriage. But, having read this useful book, I will evaluate the alternative of Structured Negotiation in all my future “cases.” You can obtain a copy of “Structured Negotiation: A Winning Alternative to Lawsuits” here.