In a world where ‘honest lawyer’ is considered an oxymoron, (mis)characterizations of those in the legal profession as deceptive, aggressive, and combative are, unfortunately, common. In part, this can be understood within the context of the increasingly adversarial and zero-sum nature of litigation, which inherently posits two opposing sides.
Leading disability rights lawyer Lainey Feingold, however, wants to solve problems differently. Rather than the skeptical and distrusting demeanour she feels some American law schools still cultivate amongst their students, Lainey advocates for cooperation, patience, kindness, optimism, and equanimity in her legal practice. She believes that in nearly every field, people are yearning to solve problems without conflict.
This isn’t merely wishful thinking. For over two decades, Lainey has negotiated and secured over five dozen agreements to advance disability and civil rights – all without litigation. How? Via the innovative alternative dispute resolution method she calls structured negotiation, a process she documents in her book ‘Structured Negotiation, a Winning Alternative to Lawsuits’ which earned her the 2017 John W. Cooley as a Problem Solver award, not to mention the reputation of a “legal rebel” by the American Bar Association!
At IDIA, our mission is not just to sensitise and enable underprivileged students to access legal education, but to empower our scholars to become CHAMPS – Creative, Holistic, Altruistic, Moral, Maverick, Problem Solvers. As part of the IDIA Disability Access Program (IDAP) vertical, we were thrilled to learn of this champ, not least for her incredible contributions to accessibility and civil rights, but also for her full embodiment of creative, holistic, altruistic, moral, maverick problem solving! We had the pleasure and privilege of speaking with Lainey over the phone to discuss structured negotiation, and the various insights, lessons, challenges, and opportunities she sees in advancing accessibility and civil rights.
Structured negotiation: from inception to landmark settlements
Put simply, structured negotiation can be understood as a problem solving tool which focuses on collaborative, win-win resolutions to disputed claims, without the use of lawsuits.
It all started in the late 1990s, when Lainey was working at a disability rights organization. She was approached as a lawyer to address the lack of accessible automated teller machines (ATMs) for people with visual impairments. At the time, the American Disabilities Act had just passed, and it seemed like they had a very strong case — nowhere in the United States could people with visual impairments access their own funds through an automated machine. Yet, she and her co-counsels worried that framing the issue in the context of a lawsuit would be counterproductive, especially since the technology simply didn’t yet exist. Instead, they decided to negotiate with the major banks in a client-centred way, where those experiencing the barriers were directly involved in the conversations and decisions being made. To their pleasant surprise, it worked! From securing the first-ever agreement with a major bank willing to install five ‘Talking ATMs’, they were able to successfully negotiate with three major banks who have now installed tens of thousands of Talkings ATMs across the country. In a small way, this paved the way for countries like India to follow suit, whose Reserve Bank of India has been circulating accessibility guidelines for ATMs, including the use of talking and Braille functions.
Since that first success, she has honed the structured negotiation process to successfully advance technology and information accessibility in a wide array of fields, products and solutions with a variety of different stakeholders. These include talking prescription labels, accessible pedestrian signals, and web and mobile accessibility, in collaboration with major corporations, organizations, and governments like Wells-Fargo, Wal-Mart, Major League Baseball, the city of San Francisco, and more.
The roadmap to a successful structured negotiation
The term ‘structured negotiation’ was coined because Lainey and her co-counsels felt that following a structured process could get results. The goal of Lainey’s book was to provide a roadmap to describe how structured negotiation has worked for her in the last 25 years, and to give people the tools to try it for themselves. She explained some of the core elements in conversation with us.
The first step is to ensure structured negotiation is the right strategy, to make sure clients are actually willing to try and solve the problem in this alternative, more collaborative way. An Opening Letter is then drafted to be sent to the organization, which describes structured negotiation, introduces the people experiencing the challenges, and the facts and legal basis involved with the claim. This letter is a critical piece, intended to be framed as an invitation to help find solutions, as opposed to a threat or complaint that demands redressal by a certain date. Following this, ground rules are then established to ensure confidentiality, a mutual understanding of what the structured negotiation entails, and a formalization of participation in this process.
The next stage involves sharing resources, information, and expertise, which ultimately benefits all parties involved given the increased cost-effectiveness and efficiency of information gathering. This contrasts with the typical deposition, which amidst its myriad of rules and processes often contributes to an unproductive and expensive outcome. Rather, based on a foundation of trust and the collective end goal of reaching a fair settlement, information is encouraged to be shared openly. In Lainey’s experience, it has been particularly critical for company decision makers and government agencies to hear from people with disabilities themselves about how they were experiencing various barriers.
Once the solutions and settlements have been negotiated, an implementation and monitoring plan is developed, important particularly for large-scale organizations which may need some time to fulfill their commitments. Another key element is the use of media strategies – how to engage strategically with the public about the issue so that the organizations don’t feel attacked. Whereas a public statement is often released right when the lawsuit is filed, the structured negotiation process encourages the publication of a joint-press release only after a positive development. This allows participants to cultivate an environment where organisations are celebrated for being active stakeholders in advancing accessibility and civil rights.
Structured Negotiation as a response to fear and lack of awareness
The goal of structured negotiation is to provide a process that is less confrontational, more cost-effective, and most importantly, one that enables a constructive method of engaging and finding solutions. Lainey stressed that this collaborative process is important because many accessibility barriers are rooted in misunderstanding, fear, and simply, lack of awareness of the differing needs of people with disabilities.
In the workplace, there is still a basic lack of understanding about the ways that people with disability work, not to mention the different kinds of skill sets and strengths a person with a disability can bring. People continue to be surprised that blind people can use computers and mobile phones. When negotiating with pharmaceutical companies about developing talking prescription labels, Lainey learned they feared talking labels would result in people taking the wrong medication — a somewhat befuddling perception considering the purpose of talking labels was to enhance safety and accessibility. Recognising that these were fear based misunderstandings, however, reiterated the need – and opportunity, to engage.
To do this, Lainey is actively mindful of language to ensure that the framing of the process creates an environment conducive to negotiation, and avoids accusations and defensiveness. Words have power, and the structured negotiation process opts to send an invitational ‘opening letter’ over a demand letter, seeks to support their claimants of due rights and access, rather than a plaintiff or complainant of grievance; and foregoes engaging with a ‘defendant’, and the presumption there is behaviour to defend as opposed to lack of awareness on how to improve. Even when negative behavior is identified, Lainey stressed that encouraging “defensiveness” does not encourage a solution.
Structured negotiation has also been referred to as ‘integrative law’ – a movement which seeks to ‘grant everyone in the legal system dignity and voice, while advocating for more values-based, creative, sustainable, and holistic problem solving and relationship building’. Relatedly, these goals and the aforementioned processes are underpinned by what Lainey terms the ‘structured negotiation mindset’ – a dedicated chapter in the book discussing the importance of characteristics like equanimity, patience, mindfulness, optimism, trust, empathy, and basic kindness. “In my experience, people aren’t sitting around saying ‘we want to treat people badly,” Lainey remarked. She asserts that we mustn’t see these traits as weaknesses, but ought to exercise leadership to work with these values, and give others permission to do the same.
Key challenges of structured negotiation: time, patience, and faith in the process
When asked about the challenges she encountered when engaging in structured negotiation, Lainey admitted that the hardest part was convincing the other side to participate. This is not a way one-way street, and persuading people to experiment with an unfamiliar process has come with difficulties. The second biggest hurdle has simply been the time, patience, and faith in the process required to see it through.
Lainey’s most disappointing experience with Structured Negotiation involved an airline which had accessibility standards not governed under the American Disability Act. Because of this, they they felt it wasn’t necessary to engage. In her over two decades of structured negotiation, this was the only lawsuit Lainey ever had to file.
While the process has been very successful in obtaining reasonable payments and attorneys’ fees in disability rights litigation, it would be much more of a challenge to use Structured Negotiation in cases seeking millions of dollars in payouts to injured plaintiffs. Still, even in that type of case, the tools of Structured Negotiation could prove useful after a lawsuit is filed and initial litigation has been completed. After all, over 95% of cases in the United States settle.
Ultimately, cultivating faith in disability rights can be time intensive, but developing relationships with people with disabilities as customers, as members of the public, and as clients can be rewarding and fruitful, especially when the outcome is a mutually agreed upon resolution within the context of a structured negotiation.
Accessibility as a Civil Rights and Access to Justice Issue
While Structured Negotiation has succeeded in advancing important and widespread accessibility initiatives without the use of lawsuits, we asked Lainey whether traditional litigation still had any value as a legal tool. In response, Lainey explained that Structured Negotiation is one tool in a toolbox of many legal techniques, and that litigation remains a potential avenue within the structured negotiation process. She also acknowledged that lawsuits do sometimes result in progressive judgements, and have been an important civil rights strategy for decades. Strong legal frameworks can enable people with disabilities to lead a life of dignity and respect.
However, while disability laws like the American with Disabilities Act, or India’s Rights of Persons with Disabilities Act do lay legal foundations, most tend not to be specific or prescriptive. Many of the solutions that have come out of Structured Negotiation are not codified into legislation, in part due to the rapid pace of technological innovation. Even in the absence of legislation directly addressing a specific accessibility barrier, other legal frameworks like employment law, non-discrimination principles, and basic civil rights can often be used to bolster the legitimacy and strength of the claim.
Indeed, framing accessibility as a civil rights and access to justice issue, as opposed to merely a legal issue can actually prove to be more effective, especially in response to arguments some businesses make that absence of accessibility accommodations is justified by insufficient demand, or the unfounded assumption that disabled people constitute a small proportion of the population and market share.
Lainey illustrated this challenge by sharing the story of how usage rates of Talking ATMs were tracked in the initial stages of installation, triggering a counter every time a person plugged in their headset. However, her team was insistent on reiterating that it was a civil right for every single person to be able to independently access their money. Because key decision makers at the bank had met and interacted with blind customers through Structured Negotiation, the idea of financial access as a right, and the obligation to provide accessible ATMs eventually made its way to a keynote address at an international finance conference attended by industry leaders.
Technological Innovation as Expanding Opportunities – and Exclusions
While a variety of assistive technologies have enhanced and enabled accessibility, the rapid pace of technological innovation has simultaneously created new forms of exclusion. As communication and information migrate to the web, people with visual and auditory impairments are increasingly locked out when accessibility is not built in. For example, with videos becoming an ever prevalent popular medium, the absence of described text or closed captioning remain major barriers to accessibility.
Meanwhile, the level of technical complexity and know-how required to effectively use these tools can vary – creating yet another level of barrier. Having primarily worked on cases of information and technology accessibility, Lainey emphasized that the barriers she has addressed are typically at the level of code and design, one which cannot be resolved by learning new skills, but requires design changes by the vendors and organizations because the technology was simply not designed for all users in mind.
Lainey concludes: “I do believe technology has an incredible promise for people with disabilities, that it can be built to increase and expand opportunities. We have a big job ahead of us to make sure everyone benefits from that.” Structured negotiation has indeed proven to be a remarkably effective tool in ensuring these benefits continue to be duly distributed and widely accessible.
Written by Maggie Huang. The interview was conducted by Maggie and Rahul Bajaj. With the assistance of Lainey Feingold, this post was also lightly edited for clarity.