Lainey Feingold ’81 is a highly successful disability rights lawyer, an international speaker, an author, and a UC Hastings alum. She spoke with Sheila Purcell, Director of UC Hastings Center for Negotiation and Dispute Resolution, about her new book, Structured Negotiation, a Winning Alternative to Lawsuits. The book is published by the American Bar Association, sponsored by the ABA Section of Dispute Resolution and the ABA Commission on Disability Rights.
Lainey will be speaking at a free wine and cheese/MCLE event, on Tuesday, January 24, 2017 from 5-7 p.m. (register here). She will be joined by Jessie Lorenz, the Executive Director of the San Francisco Independent Living Resource Center, and one of her clients in Structured Negotiation. The event is co-sponsored by the Bar Association of San Francisco.
First off, Congratulations on your new book, Structured Negotiation: A winning Alternative to Lawsuits. For those who don’t already know, what is Structured Negotiation?
Structured Negotiation is a dispute resolution process that happens without a lawsuit on file. My clients, co-counsel, and I have used Structured Negotiation for twenty years to negotiate agreements with organizations as diverse as Major League Baseball, the City and County of San Francisco, and Bank of America. My cases focus on digital and information access for blind people, but the process is suitable for other types of claims as well.
How did you wind up doing Disability Rights work?
When I graduated from Hastings in 1981 I wanted to be a union-side labor lawyer, which I did for many years. Through the usual twists and turns of a career, I ended up at the Disability Rights Education and Defense Fund (DREDF) in Berkeley for a four-month job that stretched to four years. It was during that time that Structured Negotiation was born.
A blind lawyer called about access to ATMs, and along with the Oakland civil rights firm Goldstein, Borgen, Dardarian and Ho, we decided to write letters to 3 California banks instead of suing them. It worked! We signed settlement agreements with each bank as a result of those negotiations. As described in my book, those three cases became the spring board for developing and perfecting the Structured Negotiation method. When I started my own law practice in 1996 I continued to represent blind clients and disability rights organizations without lawsuits, and I have done so ever since.
What are some concrete examples of changes achieved through Structured Negotiation?
The early successes were with Talking ATMs. When we sent our first letters to the banks in 1995 there were no ATMs anywhere in the world that blind people could use independently. We used Structured Negotiation with most of the country’s largest banks to reach settlement agreements requiring Talking ATMs. The collaborative process described in my book enabled our clients to give input as the new technology was being developed.
Protecting the financial privacy of blind people led to work on digital accessibility. Digital accessibility is about making sure websites, mobile apps, and other digital properties (think learning platforms, kiosks, etc.) are available to disabled people who may not be able to see a screen, use a mouse, or hear a video. We negotiated the first web accessibility agreement in the country in 2000 with Bank of America so its online banking platform was available to disabled customers. Again, our clients were involved throughout the process.
The method works so well in large part because it allows companies to meet their customers in a collaborative atmosphere instead of across a deposition table. I describe many of those meetings (and include a checklist about what makes them successful) in the book. We went on to negotiate web accessibility agreements (and later mobile app agreements) with Major League Baseball on behalf of blind fans, with Weight Watchers on behalf of blind people who could not use the company’s online weight loss tools, and with Anthem, Inc. for blind members across the country who could not read basic insurance documents offered only in standard print.
Recently, Structured Negotiation has been used successfully with the country’s major pharmacy chains on the issue of talking prescription labels. We have negotiated agreements in the process (no lawsuits required) with CVS, Walgreens, Rite Aid and others. Again, our clients have had an important role in the solution.
Structured Negotiation works with government agencies too. San Francisco signed an agreement to install audible pedestrian signals (there are some on the corner of McAllister and Hyde, right in front of Hastings). And I worked with lawyers in Texas in a Structured Negotiation with the Houston area transit agency on web and mobile access issues.
Do you have thoughts on how applicable is Structured Negotiation might be in other areas of Law?
I’m hoping readers of my book will help me answer that question! The book as a roadmap through the process. I’ve tried to distill twenty years of successful negotiations into usable chunks so lawyers and clients in various fields can decide if the method is suitable for them. I think it will be.
For example, there is a chapter about how to write an opening letter that is more an invitation to negotiate than a demand for particular relief. Our experience in writing letters that engage – not alienate –has applicability anytime one seeks to open dialogue with a potential adversary.
Another chapter explains the ground rules we use that are in no way disability rights-specific. And the checklist for successful meetings when there are no rules imposing order is relevant whenever people get together to resolve disputes.
Our joint use of experts will hopefully encourage others looking for a cost effective way to bring expertise into a dispute. And the book’s lessons about appreciating small steps toward larger goals and working with a negotiator’s fear are relevant to so many types of conflicts.
In the final chapter I write about the universal intangibles that make negotiation outside the courtroom possible – patience, equanimity, trust, and kindness among them. These elements of the Structured Negotiation mindset know no borders; are not limited to any particular type of case.
Structured Negotiation is a very cost-effective process that gives clients a seat at the table in resolving their legal claims. Because the parties do not hand control over to a third party it is a less stressful way to practice law. Yet it is flexible enough to embrace mediation if the parties agree that would be helpful. And if for any reason the process fails, the door to the court house remains open. Under these circumstances I believe Structured Negotiation is a valuable tool in the toolbox of many different types of lawyers and advocates.
I hope that my book gives lawyers confidence that being a strong advocate and being a peacemaker are not inconsistent. That parties can talk directly with each other without the safety net of court rules or third-party decision makers. I look forward to hearing from readers about how they can use Structured Negotiation – in whole or in part -- in their work.
Who is engaged in innovative practices along these same lines?
That is a great question. Structured Negotiation fits into a burgeoning aspect of the law that practitioners often refer to as Integrative Law. It embraces a wide variety of practices that are focused less on conflict and gamesmanship and more on true relationship-building and long-term problem solving. Restorative justice, conscious contracts, and Collaborative Law are just a few of the methods of practice that fall within this broad tent. Lawyer and author J. Kim Wright, has been nurturing this movement for years, first in her 2010 book Lawyers as Peacemaker, and in her forthcoming book titled Lawyers as Changemaker.
What advice do you have for students and recent grads?
Evaluate your choices along the way. Don’t be afraid to course correct if you are dissatisfied. Think creatively about how you want to practice law in addition to what type of law you want to practice. And think about who you want to practice with. For twenty years I have worked by myself, in my home office (a solution initially sparked by my effort to find a life balance when my kids were young). This would not have been possible without strong co-counseling relationships with lawyers around the country, and primarily with Oakland civil rights lawyer Linda Dardarian.
Today’s technology makes co-counseling and other work-sharing arrangements far more available to lawyers than when I started my career. Take advantage of that, think outside the box, and don’t forget to enjoy your work and the people around you!