By Melissa Keyes
Litigation by its very nature puts parties in an adversarial position — plaintiffs allege they have been harmed, and defendants argue they did nothing wrong. The focus becomes “winning” over solving the problem. The result then, is someone wins and someone loses. This is not a good position when the desired outcome requires collaboration and buy-in.
As attorneys, we are well aware of alternative dispute resolution, or ADR. Broadly defined, ADR includes any method to resolve issues without litigation. The two most common types of ADR include arbitration and mediation — using neutral third parties to help resolve disputes, either with or without a complaint on file. But there is another option called “structured negotiation” that does not typically use outside parties and does not start with the filing of a complaint. The components of structured negotiation are not new; people resolve problems every day without resorting to litigation. But now the process has been better defined, refined and expanded.
California attorneys Lainey Feingold and Linda Dardarian have used structured negotiation for more than 20 years, most notably to improve access to information and technology for people who are blind or visually impaired. Their ability to catch more flies with honey using this approach began in 1994 when Feingold and Dardarian reached agreements with several large banks to provide talking ATMs and other accessible communication methods for the blind community, all without filing a single complaint. In fact, in the 20 years that Feingold and Dardarian have used structured negotiation, they have only needed to file one lawsuit. Since its inception, the strategy has been used to resolve accessibility disputes with major companies including Best Buy, CVS, Major League Baseball, Target and Walmart. The American Bar Association is publishing Feingold’s book on the process later this year. For more information, visit http://lflegal.com/book.
Structured negotiation is well-suited for cases where a solution is best achieved by collaboration rather than court order. It can be especially helpful in cases where injunctive relief is sought. While the process has been successful with accessibility issues under the Americans with Disabilities Act, it can be used in a wide variety of contexts when there is a joint interest in avoiding the time and expense of litigation. Sarah Marr, a partner at Riley Bennett & Egloff LLP in Indianapolis, has had success using structured negotiation strategies with some of her clients, noting, “The landscape of litigation is changing. Clients are looking for strategies that keep costs down and structured negotiation has been a helpful tool to accomplish that.”
Structured negotiation begins with a letter introducing the claimant, describing the problem and legal rationale supporting the claim, introducing the concept of structured negotiation and providing potential solutions to the problem. The tone is collaborative and encourages trust. Feingold notes the benefit of saying something positive about the entity being contacted, for example, highlighting past contributions to disability issues, or its commitment to inclusion and diversity. “Expressing the good as well as the bad helps establish trust,” Feingold states, “Our words say, ‘We will be honest with you about what is good, so believe us when we tell you what needs changing.’”
If both parties are open to using structured negotiation, ground rules are set using a “structured negotiations agreement.” This document, signed by both parties, addresses tolling of statute of limitations, informal discovery and what to do if the process breaks down.
Attorneys relying on fee-shifting provisions may be nervous to negotiate without having a complaint on file for fear of not being able to recover fees upon settlement. However, both Feingold and Dardarian have regularly had fees paid by the parties with whom they are negotiating. A provision about attorney fees in the structured negotiations agreement ensures that parties will not be penalized for pursuing a litigation alternative.
A focus of structured negotiations is building relationships that encourage open communication and trust. It necessitates not just good negotiating skills, but also requires good people skills. That can be a hard sell for parties used to an adversarial system and used to focusing on the legal position between right and wrong. However, looking at where the parties agree, rather than where they differ, can help facilitate a successful resolution. For example, a company is generally interested in making sure its website is available to all potential customers. Rather than fight about what is required under the ADA, by using structured negotiations, the parties work to come up with solutions tailored to the company’s culture that actually address the problem. The customers now have better access, and the company not only has made its services available to more customers, but it had a say in the process ensuring that the solution fit within its structure — all without the need to resort to protracted, costly and adversarial litigation.
Successful structured negotiations result in a binding and enforceable settlement agreement not unlike those reached when settling litigation. Feingold also notes the importance of a positive press release upon resolution. Highlighting the positive changes that have been made is key in promoting not just that company’s buy-in, but also encourages other companies in the industry to see structured negotiations as a viable alternative to litigation.
Feingold and Dardarian’s approach is innovative not necessarily for its method, but for its common-sense approach to problem-solving. Attorneys have been using various components of structured negotiations for decades, but this process truly highlights the benefits of a positive and collaborative attitude to solving otherwise complex problems. Structured negotiation, as clichéd as it sounds, may be the first truly win-win solution and should be considered a promising alternative ADR strategy.•
• Melissa Keyes is the legal director for Indiana Protection & Advocacy Services. The opinions expressed are those of the author.