December 2016 Issue  Volume 17  Number 12

Interviews

A Conversation with Lainey Feingold about her new book, Structured Negotiation: a Winning Alternative to Lawsuits

If you've ever used a talking ATM, or entered your debit card PIN into a tactile point of sale terminal, you may not know it, but you owe a debt of gratitude to Lainey Feingold. Blind National League Baseball fans who are blind and enjoy following their home team stats online, traders with visual impairments who buy and sell securities using E*Trade or Charles Schwab, and anyone who has received a talking prescription label from Walmart have also had their quality of independent life enhanced by her work.

Over the past 20 years Feingold and various co-counsels have been instrumental in successfully negotiating over 60 accessibility settlements with companies and communities ranging from Safeway to Target, from Weight Watchers to the City of San Francisco. This is a remarkable feat, in and of itself. What makes it truly amazing, however, is the simple fact that Feingold has managed to accomplish all of this without ever filing a single lawsuit or legal complaint.

We first introduced you to Lainey Feingold in a December 2013 AccessWorld profile. In that article AccessWorld author Deborah Kendrick recounted Feingold's first vision-accessibility case when she was working at the Disability Rights Education and Defense Fund (DREDF) in Berkeley in the early 1990s. The case arose like all the others she has worked on -- with advocacy efforts of individual blind people and their organizations. In that case a particular Californian who was blind became exasperated with the failure of Bay Area bus drivers to announce stops. "The ADA had passed in 1990 and regulations were in place," Feingold recalls, "so the rules were there, but people weren't following them."

A few years later while still at DREDF, Feingold began working on the cases that would eventually result in an approach called Structured Negotiation. Along with Linda Dardarian and her Oakland, California, civil rights firm, Feingold began pursuing the blind community's claims for Talking ATMs. Rather than filing a lawsuit, though, Feingold and Dardarian wrote letters, made phone calls, reached an agreement, and solved the problem with the active participation of the California Council of the Blind and individual blind bank customers. Among them was Steven Mendelsohn, who first brought the idea of Talking ATMs to Feingold's attention. At the end of those negotiations, the accessibility of online banking became an important, additional issue. The Talking ATM agreement with Bank of America also included the first language in the country requiring online banking platforms to be usable by blind people.

Over the intervening years Feingold has refined and codified the Structured Negotiation technique. Now she's sharing her knowledge and experiences with others in her new book, Structured Negotiation: A Winning Alternative to Lawsuits, which was recently published by the American Bar Association. This is a must-read resource for any and all lawyers, paralegals, and other advocates involved in disability rights organizations who advocate for equal access and other ADA issues. Happily, the book has also been made available on Bookshare, so even if you're not a legal eagle you will find this book both relevant and useful for your personal advocacy.

To whet your appetite, we asked Lainey Feingold to share with our readers the most important things she would like all vision-impaired individuals and those who advocate on their behalf to know about Structured Negotiation.

What is Structured Negotiation?

Structured Negotiation is a dispute resolution process to resolve legal claims without lawsuits. It happens when parties come together and decide to work to resolve a legal issue, such as an ADA violation, without going to court.

How does it differ from a lawsuit or mediation?

In Structured Negotiation the parties usually work directly with each other to resolve their dispute. In a lawsuit there is a third party (a judge) who can make decisions that sometimes neither side likes. Structured Negotiation is not adversarial, and is less expensive than most other forms of dispute resolution. And there is no risk of judgment against anyone on technical reasons. Usually the parties in Structured Negotiation can work things out without a mediator, but sometimes a mediator can be helpful in the process to assist in getting over challenging hurdles during a negotiation.

Who is a good candidate for Structured Negotiation?

For 20 years Structured Negotiation has been successful with private companies, government agencies, and non-profits. Accessible technology issues have been resolved very favorably in the process. Both individuals and organizations have participated in the process. Sometimes one individual can be the basis of a Structured Negotiation, sometime many individuals who have experienced similar problems, or a combination of individuals and organizations. The people and organizations bringing a case in Structured Negotiation are called Claimants, to emphasize that the process is intended to resolve worthy legal claims.

Why would the target company or agency agree to participate in Structured Negotiation?

Structured Negotiation is less expensive than litigation. All parties retain control -- there is no judge or jury that may not understand the issues. Structured Negotiation allows parties to maintain on-going relationships--relationships that are often squandered in an adversarial process.

Who pays legal fees?

The ground rules document presented at the beginning of a Structured Negotiation clarifies that attorneys' fees will be paid in the same manner that fees are paid if a case is filed (though of course they will typically be much less). In a discrimination case filed under the ADA, for example, a disabled person who wins a case has a legal right to have her or his attorneys' fees paid by the entity that has been sued. Structured Negotiation is a win-win process, and claimants do not give up any rights by participating. Therefore, attorneys' fees in appropriate cases are part of the final settlement. On the other hand, if the negotiation is not successful, lawyers for the claimants will not recover legal fees. As a lawyer who has represented blind people and their organizations for 20 years, I do not charge my clients. Federal law allows recovery of attorney's fees from the company or government agency with whom we are negotiating.

Can a Structured Negotiation be a lengthy process?

The length of time it takes to successfully complete a negotiation varies. Sometimes resolution is quick, sometimes it takes longer. Patience is an important quality of Structured Negotiation. We can be patient because we know that sometimes it takes a large organization significant time to make decisions that impact policy and technology. In my experience that time is often a very good investment in ensuring that there is real buy-in for change.

What sort of precedents does a successful Structured Negotiation set?

Because Structured Negotiation occurs outside the court system, there is no legal precedent. On the other hand, the process can set industry precedent because when one company does something others are more likely to do it too. This happened with Talking ATMs. Once the first banks agreed to install the new equipment, it was easier to convince other banks to do so. We did Talking ATM cases in Structured Negotiation all around the United States. And the technology spread internationally too. I still get excited when I read about new banks making their technology accessible to blind people all over the world. Industry precedent also happened with talking prescription labels. Walmart was the first national retailer to agree to talking labels in Structured Negotiation with the AFB, the ACB (American Council of the Blind) and the ACB's California affiliate as claimants. Many other national pharmacy retailers followed.

Can successful Structured Negotiation affect the way accessible devices are made and marketed?

I believe it can. Walmart agreed in Structured Negotiation to install point-of-sale devices with keypads that could be felt and not just seen. Walmart put pressure on its vendor to make those devices, and they were then available to other companies wanting to protect a blind person's right to privately enter their PIN. This was one of several cases that AFB was involved with as a claimant.

How is a Structured Negotiation monitored over time?

A successful Structured Negotiation ends with a binding legal settlement agreement, very similar to the settlement agreements that come out of most filed cases. We monitor our agreements like we would had we filed a case: we get progress reports from companies, we ask our clients to give us feedback, and we have meetings to make sure things are working as they should. If they are not, we work together to resolve any problems. The good relationships developed during Structured Negotiation extend to this monitoring period. We have never had to go to court to enforce one of our agreements.

How can the concept of Structured Negotiation be extended?

That is one of the reasons I wrote this book. I believe the process can work in many other types of cases where the parties prefer cooperation over conflict. When everyone behaves reasonably, is trustworthy, and stays focused on solution, Structured Negotiation can be an effective way to resolve legal claims. It is my hope that people read the book, try the process in appropriate cases, and let me know what happens!

Structured Negotiation: a Winning Alternative to Lawsuits is available from the American Bar Association Bookshare.

More information on Lainey Feingold's law practice, including a 10-percent discount code for the book purchase, can be found on her firm's website.

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