What do you say when someone asks what kind of lawyer you are? Maybe you start simple—“I’m a plaintiffs’ lawyer,” you answer, or “I’m a general practitioner.” Details may follow: a bankruptcy lawyer, environmental law specialist, a patent, personal injury, technology, or health care lawyer.
Maybe you talk about the size or geographic scope of your firm—“I have a mid-size firm with a global reach;” “I’m a solo attorney with a focus on my local business community.”
These are the “what” answers about our law practices. They are critically important to our identity as lawyers: the elevator speeches about who we are and what we do. For 25 years, my “what” answers have been disability civil rights lawyer and sole practitioner.
This article is about something else: the “how” of our law practices. Are we more comfortable in a conflict situation or a cooperative environment? Do we believe lawsuits and a scorched earth approach bring the best results for our clients?
Do we thrill at gambling for the win, or do we value the advantages of the win-win?
Are we risk averse or risk takers—and do we think one approach brings better results?
Do we believe lawyers can be strong advocates and peacemakers? Or does peacemaking conjure weakness or neutrality?
In short, do we practice law with an outstretched hand? Or is our go-to approach a punch in the stomach?
For 25 years, my how answer has been Structured Negotiation. It’s a collaborative dispute resolution process that lets advocates be peacemakers while delivering big results for their clients. (As you’ll read below, I’ve used the process with Walmart, Bank of America, and dozens of America’s largest companies.)
Structured Negotiation is the outstretched hand, the belief in the win-win.
What Clients Want
When our clients come to us with a problem, they often know (or at least think they know) what they want. Usually, it is some combination of money, public vindication, redress for wrong-doing, and policy, behavior or other injunctive-type changes.
But do our clients know how the law can help them achieve their goals? For this they rely on their lawyer. Often, the lawyers’ tool box holds many tools for meeting our clients’ goals. Each tool is a “how” of law practice.
Perhaps you see an administrative path at the local, state or federal level. Maybe a state or federal lawsuit is likely to bring desired results. (In today’s political climate, lawsuits are proving a critical bulwark protecting against constitutional encroachments.)
Sometimes we can encourage a would-be defendant to mediate claims before a lawsuit is filed. In a family law setting, we can suggest a Collaborative Law approach. Criminal lawyers may have the option to work in Restorative Justice.
In pursuing my clients’ claims under the Americans with Disabilities Act, I’ve used Structured Negotiation for more than two decades.
These options or others can be pursued separately, or combined for a novel and effective dispute resolution strategy. Too often, though, our profession turns to the lawsuit option first.
Especially when we think our clients have a good case, we forget about other tools, and default to putting a case on file, preparing for battle.
We do this even when we know that a lawsuit is expensive, stressful and risky. Even when we know it has the potential to destroy relationships and leave our clients feeling unfulfilled, often even if they “win.”
When all you have is a hammer, everything looks like a nail. The litigation hammer turns too many disputes into potential lawsuits; a conflict to be won or lost.
Structured Negotiation is another tool in service of our clients’ goals, one that allows lawyers to be advocates and peacemakers.
What Is Structured Negotiation?
Structured Negotiation is a dispute resolution method that typically happens without a lawsuit on file. Without court rules and civil procedure, the process depends on trust and good faith. Without depositions and interrogatories, information sharing is informal and direct. Without expert depositions, affidavits and motions, true expertise can help parties reach resolution – even the expertise of our clients.
Structured Negotiation developed at the intersection of technology and disability rights. It was first used by blind advocates needing talking ATMs. The lack of these accessible ATMs violated the Americans with Disabilities Act, but instead of suing, my clients, co-counsel and I decided to write letters to Bank of America, Wells Fargo and Citibank to see if they would work with us to develop the technology. At the time, it didn’t exist anywhere in the world.
Those early letters, like dozens of other Structured Negotiation letters since then, resulted in legally binding settlement agreements with detailed monitoring and enforcement provisions. Those first agreements introduced new financial industry technology, resolved monetary claims, and established relationships that continue today between the banks and blind advocates.
Tucked into the 2000 agreement with Bank of America was the country’s first web accessibility commitment, guaranteeing that the bank’s website would be designed for all users, including those who can’t see a screen or hold a mouse.
When we sent those letters in 1995, we didn’t realize we were on the path of creating a new way to resolve legal claims—a new how of law practice. Twenty years (and one book) later, I know where the path leads, and its replicable elements that can be used by lawyers and clients in all fields looking for a different answer to the question: “How do you practice law?”
Beyond Three Banks
Blind people and their organizations, hearing about the success of Structured Negotiation in the first three banking cases, came forward with accessibility claims against other companies and government agencies. As we used Structured Negotiation to resolve new issues with new parties, its elements were refined and came into greater focus: a certain type of opening letter, a particular ground rules document, a collaborative way of sharing expertise.
Other elements emerged: drafting, monitoring and media strategies; language to foster cooperation; a mindset to nourish it; and other aspects of a new dispute resolution strategy explored in my book, Structured Negotiation, A Winning Alternative to Lawsuits.
Using these elements, clients, colleagues and I went on to resolve class-type disability rights technology and information claims with (not against) Walmart, the American Cancer Society, E*Trade, American Express and Charles Schwab. Equifax, Experian and TransUnion negotiated about making credit reports accessible online. CVS, Walgreens, Humana and others negotiated about talking prescription labels.
Perhaps most fun of all, Major League Baseball negotiated about website access for its 30 team sites and its mobile apps. No lawsuits were needed or filed.
Structured Negotiation’s successes in resolving claims for accessible technology without lawsuits are “myth-busters.” They teach that even the largest companies with reputations for fighting hard will settle appropriate claims presented in a system of collaboration and trust instead of conflict and run-away costs. They show that even the most aggressive big law attorneys act differently outside the litigation system.
Structured Negotiation’s 20-plus year track record teaches that lawyers and clients can be both advocate and peacemaker.
Lawyer as Peacemaker? Abraham Lincoln Said Yes
President Abraham Lincoln extolled the value of lawyer peacemaking 167 years ago: “Discourage litigation,” he said.
“Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man (sic). There will still be business enough.”
A century later, former U.S. Supreme Court Justice Warren Burger made a similar comment:
“The entire legal profession—lawyers, judges, law teachers—has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers—healers of conflicts. … Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?”
Realizing I could be a peacemaker and healer while being a fierce advocate for my clients was a seismic shift in how I practiced law, how I thought of myself as a lawyer.
Altering the how of my law practice from conflict to cooperation has delivered lasting results for my clients. Many of our Structured Negotiation cases have been on the leading edge of digital accessibility, ensuring that blind people can fully participate in the online world. Damages and attorneys’ fees, as allowed under federal and state disability rights laws, have been paid without a judge’s gavel deciding how much (if any).
And an unintended consequence of the shift to this type of peacemaking? Reducing the stress of practicing law.
The Stress Factor in Traditional Legal Structures
New to Law Practice Today, I decided to look at some previously published articles before beginning this piece. I chose the June 2017 issue on “New Law” and discovered this:
A well-written piece about why big firms should get into the venture business was shared by 77 readers. A timely piece about women rainmakers had 186 media shares. “The Key to Creating Great Legal Content” had the second highest number of social media shares with 246.
But the highest share rate of a content-packed issue? A piece titled The Benefits of Mindfulness in Our Profession, with a whopping 368 shares.
This tells me that lawyers are searching for ways to make our profession more manageable. As a group, we long to strike a sustainable work/non-work balance.
You don’t need to practice mindfulness to be an effective Structured Negotiation practitioner (although I recommend it). But a hidden benefit of the process is that it is less stressful for attorney practitioners and their clients. This is true for several reasons.
First, Structured Negotiation skips motion practice and the procedure-heavy and expensive rules of discovery. A deposition is stressful for everyone—Structured Negotiation gives clients the chance to instead sit at a round table and talk about issues.
Structured Negotiation trades gamesmanship for relationship, swaps run-away costs for manageable expenses. And by not handing disputes over to third-party decision makers, all parties retain control, a definite stress reducer.
Motion practice and trial are prohibitively expensive. Lawyers widely understand that the discovery and expert systems are broken. Any alternative process that bypasses these elements should be welcomed.
Confrontational litigation gives all parties many ways to say no. (You’re in the wrong court! You named the wrong party! The law doesn’t say that!) Approaching problems with the tools of a peacemaker gives everyone more of an opportunity to say yes.
How Do You Want to Practice Law?
Structured Negotiation has its roots in disability civil rights, its branches in the blind community’s quest for accessible websites, mobile apps and other digital information. But being an advocate/peacemaker is not limited to disability rights lawyers. What tools are available in your practice area?
Do you want to be an advocate and a peacemaker? Consider adding Structured Negotiation to your toolbox.
About the Author
Lainey Feingold is a disability civil rights lawyer, author and public speaker based in Berkeley, California. Her book, Structured Negotiation, A Winning Alternative to Lawsuits, was published by the American Bar Association in 2016. Follow her on Twitter at @LFLegal.