Advocacy Skills Training – Using “Structured Negotiation” As An Alternative to Litigation
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Advocacy Skills Training – Using “Structured Negotiation” As An Alternative to Litigation


JASMINE: Hi everyone and welcome to the “Advocacy Skills Training Using Structured Negotiation As An Alternative To Litigation” Webinar training co-sponsored by Disability Rights Education Defense Fund and the Legal Aid Association of California. My name is Jasmine and I’m the trainings and communications associate here at LAAC. Today’s session is presented by Lainey Feingold of the Law Office of Lainey Feingold with an introduction from Linda Kilb of DREDF. Before we get started I want to mention a few logistical notes. If you’re having any technical difficulties with the GoToWebinar system please call 1(800) 263-6137 If you have any questions about the specific webinar, you can email me at [email protected] and I’ll try to get back to you before the webinar ends. Everyone on this call is muted so if you have any questions please feel free to send them using your chat box. This session will be recorded and materials will be posted online. After the trainings you’ll have access to those things in the coming days. Everyone in attendance will receive an MCLE certificate within one week of this training and with that I will turn it over to Linda Kilb, thank you. Linda: Thank you very much Jasmine and thanks to the Legal Aid Association of California. I am delighted to be here to introduce one of my former DREDF colleagues, Lainey Feingold was with DREDF in the 1990’s has been a longtime disability rights advocate and for the past 20 years has been pioneering a new method of dispute revolution. She is now created a book that the American Bar Association has published. It’s a very interesting read. Talks about the practical information and some interesting history but today we have the live version of Lainey to explain the highlights of the structure negotiation process so it thanks from DREDF and LAAC, I will turn it over to Lainey. Lainey: thank you, Linda. thank you, Jasmine. thank you to the Legal Aid Association of California and especially to all the attendees who are here this morning to hear about structure of negotiations. So in the title slide I have my website, which is LFLegal.com. There is a contact page there if you have any questions that aren’t answered feel free to reach me afterwards. I also have my twitter @LSLegal where I get a lot of disability rights and negotiation information. So I also do kind of a mini Twitter trainings for lawyers. So if you have any questions about that you can ask me too. So now, i’m just wondering why my slides are not advancing. Here we go! Ok so again my website is LFLegal.com I put on here a couple of links; I have a lot of good information about blindness and technology, which has been my focus for the past 20 years. If you go to LFLegal.com/topics I’m mostly focused on web accessibility, accessible pedestrian signals, braille information, and I have resources and I have a lot of information about struture negotiation so I put a lot of effort into making my website something that’ll really be useful for other disability lawyers and disability rights lawyers as well as advocates and potential clients and people with disability community so I really invite you to take a look at that and like Linda said I have a book it’s called Structured Negotiation: A winning Alternate to Lawsuits and it’s a nuts-and-bolts guide that we’re going to go over today. I tried to make a truck full of stories about the issues and the people I’ve worked with over the last 20 years. We’ve used this process with Bank of America, with Major League Baseball, with the city of San Francisco, with Weight Watchers and dozens of other public and private companies over the years. I invite you to check out the book and my website LFLegal.com/book there’s a there’s a discount code for purchasing it. So what is structured negotiation? I have an image of this slide of a handshake on a chalk board that says win-win because structured negotiation is a lawsuit alternative that strives for a win-win solution. It’s a process that happens without a lawsuit on file. One of its highlights is it very cost-effective and as we go through the process and you’ll see the various places where cost-savings exists and it’s really about relationship building. It tends to be client-centered and its best in literation and we named it Structured Negotiation back in the 90’s to reflect the work we had done with major banks on talking ATMs. It’s very similar in a lot of ways to collaborative law which is used in the family law field and listeners here may be interested, there’s a new book out just published last month called Lawyers As Changemakers and that book surveys so many different processes all over the world that are trying to use a lot in a more collaborative way to resolve issues, to get to justice faster, and Kim Wright is the author of that book. She mentioned structure negotiation along with methods all over the world. She spent a year traveling to find ways that clients and lawyers and communities are trying to use the legal system without so much fighting and in so much cost. So how does it start? The book is divided into stages and that’s how I set up this presentation. The first stage is how do you prepare the case? I should say if you have questions i’ll save some time at the end and out i’ll make a space in the middle but if something like its you right well I’m talking feel free to put it in the the chatbox and i’ll try to answer as I go along if I can. One of the first questions is are the claims that you have suitable? I know that people from different law offices on this webinar but most of you are legal aid attorneys dealing with of a whole range of different kinds of cases and one thing I read about the book was when a client comes into your office your client typically isn’t saying solve my problem this way. They’re telling us, as lawyers, what is the problem what they want. They want justice, they want money. They want something fixed. They want new policies. Its really up to the lawyer to figure out what is the best path for the client to get there and that’s why I illustrate this thinking about the claims of suitable with a path. A path marker. In the book, what I try to do is explain what has structured negotiations have been suitable for and leave it to the readers to see, will the process be suitable in other contexts? I tried probably for like two weeks to write something for the book about all different ways which I think this could work in other contexts besides disability rights with a focus on digital access and I realized I don’t really need to do that. My job as i’m doing these presentations about the book all over the country is really just to give over what has happened with the process of structure negotiation and hopefully you will find something useful that you can use in other kinds of cases. Disability rights like Ive said, we’ve used the process for 20 years; mostly my clients are all people who are blind or blind organizations. I work on technology and information access. In the early days we worked on getting audio cassette as an alternative format. Today we work on web accessibility, mobile accessibility, kiosks. Some of the issues identified at the beginning, the process has been used in healthcare setting both by me and other people around the country to improve access to services by both blind people and people with other types of disabilities because my work has focused on technology and really feel to process that can be used for technology playing because the law tends to be really slow and technology is really fast and as Structure negotiation has more flexibility so technology claims, the process has worked in the private sector and the public sector. More challenges as i know many listening now are working with and in lawsuits against different government agencies. There are different types of bureaucracies to deal with; different motivations but I talk in the book about the success we’ve had with structured negotiations in the public sector. We’ve use the process for injunctive relief, policy changes, as well as money both damages for our clients as well as attorney fees under the ABA and feeding of other fee-shifting statutes. That’s one of the issues right at the outset, you have a claim where this process might be able to work. Are the claimants ready for the process? In the book I have a pro and con check list because not every client and not every lawyer is ready for a process that requires patience and trust and has slow spots because there are no court rules telling people when to do what. You know when I turned in the draft of the book one of the readers said, “she’s gotta write about how she finds these clients who are willing to negotiate things and don’t want to fight”. It really made me laugh because since I’ve been doing this for so long, the type of people who approached me to represent them are people who want to work in collaboration. People who see the value of negotiation but I could be advice to heart and made a pro and con check list about different things to talk to. How much of a role does a client have in the litigative case vs. a negotiated case and how much time commitment is there and what’s the cost going to be for both the lawyer and the client? Things like that. What are the clients goals? You know somebody wrote me once and said I have a client all he wants to do is, you know, put out of press release and say how bad the company is and hes so angry. The lawyer wanted to know whether I thought that would be a structured negotiation case. It could be, it could be but if a client is really hell bent and you know this is a legitimate position on shaming a defendant for example this process is not going to work so you know some of the things to consider at the beginning and once you think the process is for you, the first step is to write an opening letter. We don’t call it a demand letter because we’re trying to change the vocabulary throughout the process to indicate that this is an alternative to the traditional way of doing things. We don’t call it a pre-litigation letter because if that makes it seem like litigation is the real thing then what you do before is kind of something different. This is really an alternative structure so back to the path picture, it’s a decision to to pursue a different path. In the opening letter and I have a whole chapter in the book on examples from letters and you know how to write them. Couple key issues, language, tone, saying something positive, and building trust. Part of the opening letter is different from the traditional demand letter in that we talked try not to be accusatory. It’s the alternative to the complaint so of course it’s set up the law and what the legal violations are and what the remedies are but trying to get it over in time in almost a neutral way. Dear, company. Dear, government agency. These are your members, your public, your clients. This is a problem they have experienced. This is who they are as people; as organizations and this is why it violates the law so recently a friend of mine who read the book called me and said “I can’t write the letter. I just can’t. I don’t know how to be friendly and I’m like, yes you do. Just go through it and picture yourself as the person reading the letter and the goal is to not make that person defensive but to make them understand that this is a real problem. A serious legal issue but something that you want to work towards resolution together. One of things i think is really important in the opening letter that we tend not to do as lawyers in traditional demand letters is to say something positive about the person you’re writing to and have many examples of that in the book but one of them is with Charles Schwab. When I represented a blind client who was a Schwab investor and couldn’t use the website. I did a lot of research on the Schwab website before writing the letter and discovered that they were big donors to disability rights organizations and I put that in the letter. You don’t have to be afraid to say something nice because you’re hoping it’s not going to come back and bite you. YOu know Charles Schwab has been an excellent philanthropist when it comes to disability causes and trying to turn that into something, that’s who you are and don’t you want to be that way with it comes to these claims. One of the ways we build trust in the letter is we share the names of other lawyers and or companies we’ve worked with to say you know I think we have to be honest with ourselves as plaintiff lawyers and legal aid lawyers and rights lawyers. Plaintiff lawyers have a bad reputation through no fault of our own and we could have a webinar on how that happened in popular culture but even the best defense lawyers that I know will read a letter and their first instinct is to jump to, ‘oh this is the plaintiff and the plaintiff wants to you know shake us down for money. The lawyers want to shake us down for money and we have to really fight hard to show that the stereotype is not accurate to begin with but we’re not that lawyer that you think we are and these clients are not those clients so building trust in the letter, offering to share past cases you’ve worked on or you know that the your organization’s track record in negotiating good settlements or press releases, whatever, is a really important part of the opening letter so basically i call it the invitation. you want to invite the company to participate not demand. another important part is a in a typical the man letter a lawyer might say we need to fix this by x date but instruction negotiation opening letter you’re basically inviting to a process where the details of the fix, in the possibilities of solution will be hammered out together so i just have a little image of like a white guy with a half banging on the table top that says demand versus an invitation and I talked to a lot of my opposing counsel even though i don’t use the term opposing counsel in that minute. A lot of the lawyers who have represented agencies and companies, we did structure negotiations with, i interviewed as many as possible for the book and many said that the invocation idea gives much more palatable on the receiving end then the question of getting a demand to fix something within a certain amount of time so you send the opening letter, first part of structure negotiation and then i have this stage one and a half: waiting for response and this is the time where it’s very fragile really you could say in structured negotiation because you’re waiting and you don’t have a complaint on file so they don’t have to answer because there’s no court rule requiring them to answer and there’s no system that will punish them for not answering so you must maintain confidence and equanimity in the process which we will talk about the minute, during this period while you’re waiting. so the 2 key things to get through the period, have it illustrated by this cute girl who’s looking out a window, waiting for something, is to be patient and also be proactive so it’s really important to make sure the letter gets in the right hands because again the court rules about we defended to and what their obligations are we typically send our letters to the highest person either city attorney, county council, general counsel of the company but it doesn’t always arrive where it should so a week before the deadline after we put in the letter we make phone calls, we try to be friendly with the support staff. see if it’s even got in the right hands. often times we have to send another email so getting it into the right hands is important in being persistent. obviously you’re going to have a request for an extension, very common, give them the extension at the same time stay on top of the deadlines and make sure they understand that you’re serious about getting this done. i’m going to go to the side here for one second because i already have a question about monitoring and investigating jails and prisons. Question from viewer: “your book was really helpful but i’m wondering if you could talk about some of the differences in technique and processes if you’re trying to use structured negotiation to address facility and treatment conditions”. Lainey: sorry this is kind of gone off the screen. In jails and prisons we often are dealing with things like access to medical mental healthcare, housing condition. Jails and prisons can be notoriously guarded resistant to sharing information I yeah I think so it’s interesting because we have I haven’t done any work in health in prisons but we have worked with a lot of hospitals and other lawyers have done structured negotiation with hospital for things I talk about my friend and Manning I don’t know if anyone from his office in Boston is on this call greater boston legal services they’ve done an amazing job doing structure negotiation with major hospital from Massachusetts and it does require extra vigilance especially during the monitoring phase which we’ll get to in a minute well in a couple minutes we’ll get to monitoring and some of the strategies I think in the book that will talk about they can all be used to whatever setting but i think they take extra vigilance to use them in complex settings with a lot of bureaucracy we did a structure negotiation with the City and County of San Francisco about accessible pedestrian signals and you know it took us probably six months to actually get the negotiations going there were so many opportunities to throw in the towel and as I want the book i realized that there were so many opportunities and almost every case to throw in the towel and I think that’s a and we didn’t throw in the paddle and I think one of the reasons is the next slide which is when you get the response from the company or the government agency and you evaluat it, you should not expect this image on the left which is a stick figure of a person with open arms. It’s still illegal letter on legal stationery with legal claims demanding relief so no lawyer in the right mind is gonna say oh great we’ve got structure negotiation letter. We are so happy. instead you’re probably going to get what you see on the right side which is supposed to be representing Reed’s growing in a link it’s all you need is the limits of reach and I give some examples in the book about how all the response letter start off we didn’t violate anything we’re not required to have our website be accessible or we’ve already started working with such-and-such disability group or we have a advisory committee or million different excuses why they don’t really need to be with it but there’s always that one flame read however we’re willing to meet with you and your clients learn more anything and there’s so many situations as i wrote the book and I reread all the correspondence that started all these cases I could really see that it would have been so easy to say you know what they’re not interested they’re not committed we’re not going to do it but we did and I’ve done it i personally have been about that i think between 65 and 70 structure negotiation cases over the last 20 years and other lawyers have been doing it as well so evaluating the response is really important and making sure you don’t have too high expectations for what that response says so once you have someone to talk to and they didn’t you know throw you out altogether i have to say and I say in the book has been only one time where we wrote a letter and a company said we will never engage instruction negotiation and we will not engage with your appliance so there was no slippery than that letter and we ended up having to the file a lawsuit but short of that is usually something you can grasp onto to get to state to which is talking about the ground rules so when you have a lawsuit we have we on the ground rules of civil procedure and case law whatever court rules structured negotiation i have a sample ground little document in the book and the basic elements are to identify the parties to lift the topic 74 negotiation if again with the topics but not the demands for the solution so this is just early part is between the lawyers forming the relationship to basically agree on what you’re going to be negotiating about we have a tolling agreement in the structure there goes the granules document we call the structured negotiation agreement we have a tolling language in there so our clients are penalized for going through the alternative process we have confidentiality of the process the information exchange but we really try hard not to have confidentiality of the fact of structured negotiation and we’re usually able to sell that by explaining that if people know that there’s an engagement instruction Association that’s going to protect against for that can have the effect of protecting against a possible lawsuits on the same subject we really need the ground with documented disability rights and other civil rights cases to protect attorney fees because there’s bad case law in the US Supreme Court in some states that unless you have a court order or judgment you can get attorney sees we of course have resolved all these cases without a court order and judgment so we have a specific paragraph i have it in the book about basically asking a not asking and fifth inning that there be a waiver of the US Supreme Court case of buckhannon and that will be entitled to fees under fee-shifting statutes as if we had filed the case if the negotiations are successful in the ground rules document you can have an end date you can say if this case is resolved in nine months 12 months 18 months the ground rules are cancelled and the party for free to pursue other claims i don’t typically do that is learned Chicago’s a friend- been very successful instructions appreciation and I was talking to him and he convinced me yet I like having an inmate so I i put that in the book as an option I don’t like to raise expectation of how fast something can be done and if you don’t have an end date you still we keep things moving of course through the process in the book I talk about when to introduce the structure negotiation agreement the ground rules we’ve defended with the demand letter the opening letter and say we need you to find this by this date or else we’re going to assume you want to file a lawsuit I don’t do any of that anymore because I realized why would some company find a ground-rule document about processing never heard of with people they never knew so now we wait we have a phone color to explain what the granules are on the phone and then we send them so when I want to send them too soon because we don’t want to scare them off but you don’t want to wait too long because especially I think most of you on this color and nonprofits there can be the risk of all let’s just try to work it out and you start going down the road and then it seems they want to work it out but you don’t have any structure in there to get any money for your clients any specific intent of relief with monitoring provision and attorney fees so you don’t wait too long where they think we don’t need this we have such a friendly conversation going here in the book have a section on how to resolve objections to construction association agreement I like this picture this kid who’s like got a grimace on his face because he doesn’t want to play the broccoli in front of him because structure negotiation is good i like broccoli is good stuff your association is good for the would be different thanks a lot of money conflict dress all the things that can go long and litigation but a lot of times the companies are their lawyers don’t see that so those very things I have a checklist in the book on how to resolve objections what kind of things you can say i’m hoping the book itself can you know be used hey you know if you don’t know about this process you should we just booked and there’s a lot of quotes from corporate counsel or a is a city attorney and temperatures gonna says the things about the process so you have to encourage Lori’s just straight up about things like trust you know as lawyers were not really trained to be trustworthy we’re trained to be distrustful and that’s an important to you don’t want to be walked over on the other hand is a certain leap of faith that has to be taken if you’re saying you know what let’s try to do this without judges and without court rules without court imposed deadlines and then the question about how much money it’s going to cost a lot of times that people we write to they want to know up front what it’s going to cost us and we try as hard as you can to convince them that it’s too early to have that conversation and if you’re trustworthy person and can refer them to some other lawyers on the other side that you work with that can go a long way and letting these would-be defendant back off and say okay we don’t look don’t really have to figure it out but sometimes sometimes we’re asked you know put a cap on attorneys fees put a cap on client damages right at the outset because we just need to know that before we go a step further and in the book I talk about various considerations that you might have ads your as you’re considering whether to do structure negotiation with a cap on those things in the ground rules or whether or whether or not to so finally you have the ground rules the ground will be signed and the next stage is as it would be in a lot of you have to share information to create common ground now we don’t have discovery rules and we don’t have expert rules like you do in court cases but structured negotiations have as it has developed over the last 20 years has developed strong discovery and expert alternatives so for written information it was kind of surprising to us at the beginning we need certain information from the banks were working with on talking APM and we’d ask for it may tell us and I think one of the reasons is without objections built into the system the way they are in discovery procedures and those of you litigate can let me know what you think of this idea but i think so many objections just built in to how to respond to answer how not to answer it how to respond to a complaint have not the answer interrogatory what defenses just go up for site visits your dad lawyers on the other side use them we don’t have those and often most often when we asked for information we get the information and i always come to the request is we need to know this all of us need to know this in order to come to a resolution and a lot of times the lawyers are the top business people or the agency head that the government made a point to handle the negotiations they don’t know they don’t know either they don’t know that particular questions you know for accessible pedestrian signals well how many intersections you have in san francisco and how many are signalized and what would be the cost to put in accessible signals that everybody can use so we asked for information we counted in terms of its helpful for everyone we think hard about what we really need not maybe what we might need not something the burdensome so we can figure out that the direct questions of what we need, I have some examples about that in the book and also what if there are things you think you need in the company says no, or the government agency says no, I think as lawyers were kind of trained to feel, we think we need it we must be right. They don’t want to give it to us we need to fight about it. That might not be the case, it might be something so important. On the other hand, typically what we do is we say, okay you don’t want to give that to us, now let’s see what happens down the road. Can we work together on this without the information? Later on, down the road, they may feel, yeah you’re right, we need to we need to give you this information. If something is so critically important and they won’t give it to you, there’s always the option to bring the mediator into the process. I think one of the good things about the way the book is written is in stages, which was recommended to me after I turned in another version of the book that wasn’t written that way. You can use these pieces. You know, so you file a case and you decide, we want to have a case on file for comfort level but we want to switch over into a more early negotiation process so you could take these discovery ideas and use them even with the file case and say, why don’t we put the litigation on hold or you can do a full-blown structure negotiation and which typically doesn’t involve bringing in a third party to make a decision, like a mediator and arbitrator, but if something so critical, you don’t have to throw in the whole towel, you can say, hey we need some third-party help on this. Let’s go to mediation. Typically when we’ve suggested that mid-stream the agency or the company on the other side will realize it’s not worth the cost of going to a mediation over a particular document and then we can get it that way. The meetings are probably, the Structured negotiation meeting, which I have illustrated by this little claymation, bunch of claymation people doing a puzzle together at a roundtable. Have really been some of the best parts of structure negotiation, first of all we can avoid depositions, people can talk directly to each other. I have a checklist in the book about, you know, what is the purpose of meetings, when to bring the clients, when not to, the best meeting we’ve had are meeting with the clients where company people, client on the other side too, not just defense lawyers, can actually meet each other and talk to each other and especially in disability rights and probably in all the different types of cases everyone here works on, it’s so important for people to know each other in a way other than with the hat of plaintiff or the head of defendants so we’ve had meetings in all sorts of places, on street corners to evaluate the accessible pedestrian signals or in a hospital when we are doing a Hospital case and talking ATM labs. We’ve had blind people bring their computers to offices so companies can see how blind people interact with web content. In all those meetings meet with the clients first to prepare not just them but ourselves to remember that the purpose of the meeting is always two fold. Its to build a relationship and Trust and to get across whatever particular substance, you know, or question it is. We did structure negotiations with Major League Baseball and the whole negotiation was on the telephone never once met. The lawyer were in New York for the major league baseball. Our clients are primarily in Boston but also in a couple other cities. Linda Dardaryen, who I do most of this work with, she and I are both in the bay area and we have these early calls with Major League Baseball and the Major League Baseball got to know their blind baseball fans, it was just a light bulb time and the value of being able to have these kinds of meetings without first, you know, having to go through depositions that are so defined and anxiety producing all around because people really, you know, our clients really want to share their stories and sometimes in a litigated setting it’s not best for them to do so. Where they could only do so much in a certain way. So structured negotiation meetings have been successful for the kinds of meetings, flexibility is the key. I have this picture that I like of this woman doing handstand while she’s typing on her laptop and high heels. I don’t know about that but where you have the meeting, like I said we did the whole major league baseball on the phone. We did a negotiation with Weight Watchers also on the phone because everybody was in a different city. We did free credit reports for blind people in accessible formats. There were three sets of lawyers and three different time zones. So where you have them, who should attend, making an agenda, recognizing that rules can be flexible, all work to make a structure negotiation meeting. A really key component and probably like the best part of the process for clients and lawyers alike. Clients can participate more in Structured negotiation meetings. I have a picture of backseat of a car that says lawyers stay here. Lawyers don’t have to say here but in most many of the most successful meetings I’ve had, the lawyers have had a backseat so the clients can be in the forefront explaining their problem and that allows for relationship building. Experts. Another area where structured negotiation is really one of the highlights I think in contrasting it with litigation and let me just say, should have said this at the outset, that structured association is a tool and I’m very big on the toolbox idea. That when our clients come in we want to hand over the best tool to solve their problems as we can. Kind of like the path picture, we have to decide what path to go on and decide what tool to use on that path and i just recently wrote a post on my website showing this gigantic hammer that’s outside a store on 8th street because I really like the phrase, “when all you have is a hammer, everything looks like a nail.” So in the book i’m very careful to say that there is many places where litigation is really the best option and I really didn’t want the book to read like some one saying, oh you really shouldn’t sue people because it’s very important to sue people and especially, you know, in this new era were starting tomorrow with the administration lawsuits going to be very important but at the same time there are many many issues that can be resolved using other tools and that’s what structured negotiation is, it’s another tool and another path for you to consider when you have a client in your office with a problem. The way structured negotiation handles experts is one of the ways that structured negotiation can really give the clients a bigger voice and save a lot of money. So typically in litigation as those who litigate know, each side has their own expert, cost a lot of money, theres affidavit, theres depivations, there’s fighting, there is disproving each other’s experts. In structured negotiatio, by and large, we tried for joint experts and this not only cut down the cost but allows the company and the government agency to really buy in to the expertise that’s being offered because it’s their expert too. The pedestrian single case in San Francisco might be one of the best examples of that because there aren’t that many accessible pedestrian signal experts in the country and we had worked with the best and we wanted the city of San Francisco to have their expertise so that works really well. In the book I have interviewed a lot of the experts that I’ve worked with over the years and they talk about the difference that they feel of what they can do as an expert in litigated case vs Structured negotiation and the clients can be experts. Many of our clients especially black community and Disability Rights generally, disabled people are the experts on how to solve their issues and too often in litigation, the disabled person is stuck in the role plaintiff and can’t really share the expertise, so we’ve had a lot of cases, so many I talked about a lot of the book, where the clients were really able to advance a claim and be an expert because there’s not the defensiveness, oh this is just a plaintiff, you know, on the opposite side of me but rather this is someone who’s experienced the problem with our agency or company government service, whatever, and they also have expertise in how to solve it. So I talk in the book about how to keep things moving. One of the big things we try to do is dismantel assumptions. This again requires trust because a lot of times the people we are negotiating with, they think something and we think it’s so wrong, how could they possibly think it and I have this illustrated with a rubber stamp that says, “don’t believe the Braille and this stamp was made in the nineties by a friend of mine named Josh Meley who is a blind guy, at the time he was a PhD student at Berkeley, now he’s a scientist and inventor and when ATMs, when the ADA first came out, the banks, oh we will just put Braille on the ATMs and that will be accessible and Josh was so frustrated, he made up the stamp and he stamped ATM’s and Berkeley with the stamp that said, don’t believe the Braille but the companies, the bank’s, they really thought the braille would work and instead of fighting about that and having to prove to a judge that it didn’t work, we were able to show. I have on the slide, it says show don’t tell. We would meet with the bankers and the blind clients, they would try to use the ATM machines with the Braille and they couldn’t do it and that was the best way to show that and dismantle their assumption and once we recognize that there is the assumption and has happened in so many different kinds of cases. We were able to break it down and only then could we start working on the solution. So you have to create a shared understanding which is very different than proving to a third-party that you’re right. So the whole mindset of working things out without a court case on file is very different and this is one of the places where that happens. Respecting small steps is another thing we used to get through this stage and make sure things keep moving. I have this illustrated with a Harry Potter image from a Harry Potter movie because we did a structured negotiation with Cinemark movie chain. They weren’t ready to do audio description in all their theaters and we’re representing a young girl who is blind and her mom and they really wanted to go to the Harry Potter opening and the mother, you know, our clients said well maybe you could ask them just to install the equipment in this one location and we did and they did it. They said yes and it was a small step, we wanted every theater in the country but we understood that small things have to happen before big things. So in our agreements we’ve done interim measures, we’ve done toilet programs in many different cases, I talked about these in the book and again trust and patience. I have that on every slide because you can be impatient when it’s a small step and you can be worried that the bigger step is not to come but we have seen over the years that the small steps throughout the negotiations really do really do lead to big steps. I have a section in the book on handling the unexpected, I won’t do that now but covering things like what if a new claimant had come or what if there’s a new claim that you didn’t anticipate at the beginning. It’s another advantage of structure negotiation because the process is flexible, we’ve added things into negotiations, two two years after the fact and we didn’t have to convince a judge that it was valid or or we didnt have to file motions. We were just able to do it through phone and email so I have examples of how to handle that. So at some point in Structured Negotiation you share the information, you had the meetings, maybe you’ve done a pilot project and it’s time to draft the agreement because the goal of the negotiation is to have a binding written agreement and in the book I talk about a lot of drafting strategies. One is when do you start, you can start now, you can start later and how do you start? Sometimes if you write a whole agreement it’s too much worth too early and the other side can freak out and not realize what they’re getting into. So, sometimes we start with the term sheet, other times there’s so many layers of bureaucracy you got to get the words on the paper soon as possible. One of the key things here is that I always ask the, I call them the negotiating partners or the lawyers, would be defendant lawyers, you know, do you think it’s time to exchange draft agreement and that goes so far, that one question. So instead of out of the blue they get this legal document, where everything’s been so friendly and collaborative and informal and all the sudden they’re getting a legal document, where the settlement agreement looks just like a settlement agreement as if the case has been filed. So it’s really good to get agreement from the lawyer beforehand, you know, do you think it’s time or would you rather a term sheet or you want to list of issues? So you got to start, you gotta figure out how to start, a key thing I realized in writing the book is that fear is such a big factor when it comes to writing down things and I think defense lawyers are just trained to be fearful of everything. I have a lot of examples in the book about the kinds of things companies have been afraid of, you know, the law is going to change or the technology is probably not going to work or if you do one thing here it’s gonna break something over there. It’s really important to recognize the fear and this goes back to trusting that the other side means what it says and not just putting on a show. They’re actually fearful, you have to recognize it, you have to understand it, you have to draft around it. We’ve had an agreement with like pages and pages of ‘what if’ language that really never came to bear but it gave the other side the comfort level to sign the agreement and move forward. I have a chapter in the book about negotiating money. It is almost more challenging to negotiate money at the end of a structure negotiation than it is to negotiate complex policy changes or technology purchases. In all of our cases we try to get damages for clients when there is a statute authorizing damages as well as attorney fees under fee-shifting. I’m a disability civil rights lawyer, it is the only work I’ve done for 20 years. My entire, work for myself and fee-shifting statutes have been the source of my income for this entire period. So i’m here to say that structure negotiation does work under fee-shifting cases. We have been able to get damages for our clients. I have some suggestions in the book, shifting from negotiating and junction relief, where its kind of, you know, everyone’s working hard on the policy and if you could get to the right people in the agency, they want it, they want to make the changes too. You can find someone with creativity on this other side but once they get their money it’s back to kind of a traditional, adversarial, limited pie, kind of negotiation so it’s really important not to fall back into adversarial posture, adversarial mode, when you get to the money part. You may, for the first time, in the entire negotiations have to come up with case Authority for what you’re asking for and again I always say to the lawyer on the other side, do you think it would be helpful to have some case law or do you think it would be helpful if we sent you examples of other settlements in the area so not imposing it but making sure everyone agrees on what’s necessary to move the negotiation forward. Media and monitoring. I have a chapter on media strategies. In structured negotiation we never issue a press release at the beginning because all we could say at the beginning is that there’s a problem so we wait until we have something positive to announce and we’ve been able to do joint press releases with almost every one of the organizations or companies that we’ve worked with because we’ve waited. When I did the interviews for the book it was so interesting because the lawyers for the big companies, several of them, at least three of them told me the fact that you don’t do a press release early is almost more important than the fact you don’t file a lawsuit because once a negative press release comes out, I’m thinking of this particular lawyer, said to me, that could go to the very top of, you know, chairperson of the board versus if you
file a lawsuits it could stay in the legal department. So even companies, you know, walmart, we’ve done deals with bankamerica, CBS, kind of companies you wouldn’t think would really care. They don’t want negative press and the consequence of that is we don’t get that much press coverage because the media doesn’t like it. I have a picture here, extra extra, good news, read all about it. In fact that doesn’t really happen most media doesn’t like to cover good news but in today’s social media environment I feel that the word gets out to who it needs to get out to, in most cases and I have a whole chapter about that. Appreciation is a big part of the press releases. I’ve drafted pretty much all the press releases, which you can read it , they’re all linked to one page on my website. In topics page you can go to press releases about structured negotiation and you’ll see they follow a similar format. About appreciating the positive steps that are being taken as results of the negotiation. We typically leave ourselves out of the releases. Many of you, listening here, work for nonprofits so that’s a different consideration whether you want to make sure you include the name of your nonprofit. Monitoring strategies and this kind of goes back to the Washington question. I talk a lot about different monitoring strategies. The key thing is we do monitor, the agreements to have a term, sometimes we’ve had to extend agreements, sometimes we’ve had to go to dispute resolution, other times we haven’t gone to dispute resolution. First of all we build on the relationships that have developed over time so when we get into a problem during monitoring, it is typically a problem that the people we’ve worked with understand too and I illustrated that with that keypad because we did the need for Kappa pads for blind people to enter their PIN independently. We did that with many large retailers including target and walmart and those companies have 7,000 of the stores and things went wrong inside the stores at the high levels and people who negotiated with us knew it was a problem. Even though we had a violation of our agreement, we had also agreement that we wanted to get the problem fixed. So sometimes we had to do that by extending the agreement, having testers go out or asking for feedback from the blind community. Sometimes we’ve done individual cases during the monitoring period when individual people have had particular experiences but again the trust built during the negotiation really extended to the monitoring period. Let me ask, real quick, if there’s any questions because i know there’s five minutes, and i have a few more things I want to talk about but if anybody has any questions you can type it in here and again you can always email me at [email protected] if I didn’t answer a question or you had something you wanted to say or you didn’t agree with something i said, i’d really like to hear from you. Language and Mindset. As I said the book is organized by stages but structure negotiation had two parts that are in every stage. When you write a book it has to go in order so i put one of those chapters at the beginning of the stages and one at the end to kind of show they infuse the entire process. One of the language and one is mindset. They’re very related. One of the key things for this process is patience and i illustrate that with a picture of this guy named Derek Lobello, who’s a blind surfer from Brazil, hes a big wave surfer and he has to exercise patience when hes out in the ocean waiting for a wave and that’s kind of my mantra there. Things don’t happen as fast as we’d like and we need to constantly evaluate. Is it happening because you’re being blown off or is this happening because it actually takes time to make change, to get buy-in on the other side, to reach into all the different departments that are affected. So paticence is an important thing I write about that in the book. Trust, we’ve talked a lot about in the past hour. Words that matter. Try not to use the word defendant because defendants have the root word of defend and we’re trying to say to people, look you have starting from the very opening letter, through the ground rules, through the meetings, don’t defend what happened in the past. Let’s work on creative solutions in the future and in litigation you have to prove that past conduct was a violation of law and one value of structure negotiation is you could kinda say, you know, let’s put that aside and let’s work on a solution. Opposing counsel. I try not to use that. Some of these things are just for my own as the plaintiff lawyer, my own remembering to stay in the space where you can negotiate an agreement with a lawsuit on file. Question from viewers: “Have you ever have had to enforce an agreement reached vs structured negotiation breach of contract”. Resonse from speaker: yes, we have had to enforce and that’s what I was trying to say in the monitoring phase. When we do get a breach, we have had a couple situations where we use the dispute resolution language in the agreement, we’ve gone to a mediator but 99.9 percent of the time, when we have a breach we are able to work it out , i guess you could say in a mini post-settlement structured negotiation. So we’ve never had to go to court to enforce a structure negotiation agreement and we’ve either, if it didn’t all get done by the deadline we’ve expended it, sometimes we’ve negotiated a second agreement to expand the obligations. Question from viewer: “have you ever gotten to the end and had a company tried to stiff you on fees. I worry that was an all-or-nothing settlement, you lose leverage at the end of the process.” Answer from Speaker: that is a really good question. Without the pressure how do you hold out for fair compensation. Like I’ve said I’ve done 65 cases, we’ve only had one case where we were, we’ve got the injunctive relief and we didn’t get the monetary payment and I think reason for that is twofold because we have the ground rules waving buckhannon but we do still have the legal claim that we could do a lawsuit for attorneys fees. Two, the trust that has built up and i have an example of this in the book, I know it sounds ridiculous because i used to litigate attorney’s fees cases too. Typically we do not have a problem getting paid because the relationships are established, the fees have been talked about in ground rules, they’re talked about in the opening letter, so there’s an understanding and a groundrules documents signed. One of the topics for negotiation in the ground rules is fees so it’s not like it’s an out of the blue surprise. So there’s a certain amount of with trust and relationship and fairness that has developed. Third, I’d say is that the amount of fees since we’re all working in the loads are environment where it’s hours x rate. The hours are just less than they would be to litigate the same issue and when they see those hours, i think it’s like whoa, you dodged a bullet by not getting a lawsuit on that. So all i can say is it worked and I know that there’s a, your right, the letter, the questioner says if there’s a lawsuit, there’s a mechanism of fee motion that’s put pressure on defendant to give fair fees. That is true but i think the combination of those factors that i just mentioned, leads us to getting paid fairly. If you’re very concerned you could do a fee cap in the ground rules document. And you could put it in. In the book I was careful not to say that because you know the book is widely read by lawyers of all practices and so there’s a lot of consideration about whether to put a fee captain. We have done it a couple times sometimes it’s worked out sometimes it’s worked out less well but in all times we we did get the attorneys fees. Does discrimination motivate? I have a whole paragraph on whether you use the word discrimination. I left on the cutting room floor about three pages of writing about that. I didn’t I don’t really like to not use the word discrimination in disability rights because it is discrimination but this whole process is trying to motivate the other side to do what’s right and i have found that labeling behavior is not a good motivator. On my last slide again i have my Twitter up there @LFLegal [email protected] is my email and I have on my website and speaking tab and you can see upcoming releases where I will be speaking on webinars as well as in person. So thank you so much for having me and I hope to hear from some of you in the future, all of you in the future. Jasmine: thank you so much Laney and thank you to Linda for doing introduction and thank you everyone else for joining us for today’s webinar “Using ‘Structured Negotiation’ As An Alternative to Litigation” and i’ll distribute materials and MCLE certificates after reviewing today’s in-session times, which will probably be sometime next week. Please stay tuned for our other upcoming webinars by visiting our page www.laaconline.org and selecting Upcoming Trainings. The Legal Aid Association of Califonia also known as LAAC is the membership organization for nonprofit. Our job is to advocate on behalf of California legal services community. In addition to our webinar programs, we hold in person training throughout the year and we’d love to meet you in person. You can find all this information and more on our website again www.laaconline.org and you could also email me at [email protected] with any questions. Also, you can contact Laney if you have any specific questions about this webinar and this training and you’ll have access to her PowerPoint as, we’ll be sending that out. Well, thank you again to everyone and have a great day.

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