A review of
Structured Negotiation: A Winning Alternative to Lawsuits
by Lainey Feingold
About this book
A good reference for Methods/How-To, Case Studies
Primary audience: Researchers, designers, and technical roles who are new to the topic
Writing style: Matter-of-fact, mostly text
Publisher American Bar Association, 2016, 227 pages, 16 chapters
I first met Lainey Feingold many years ago at a conference where she was giving her annual presentation on the legal landscape for accessibility. I knew she had an impressive record of landmark settlements that have made the web accessible for people with disabilities. I must have expected a TV-style power lawyer, but instead was mesmerized by her calm, optimistic passion for her work.
That was when I first heard the phrase “structured negotiations.”
The more I learned about her way of working, the more impressed I became. Lainey is a lawyer who doesn’t do lawsuits. Rather than confrontational advocacy, structured negotiation is a collaborative process that shifts the perspective from winning to creating a situation in which a group of people can work together to find a solution to a problem.
That starts to sound a lot like what we do in UX. If you’ve ever gone head-to-head on a design problem, or had to advocate for users in a difficult technical environment, the analogies are clear. On big projects it can be hard to get the whole team to work together toward the same goals.
“Structured Negotiation” is a handbook to making this approach work in a legal advocacy setting. The main portion of the book walks through a roadmap of the process, from how to prepare the case to moving the negotiations forward with experts for both sides participating in the process. For each step, Lainey describes the actions needed and provides samples of the materials, such as templates for letters or meeting agendas. These sections are peppered with stories of real cases, bringing the process to life.
It would be easy to dismiss structured negotiations as relevant only in a legal setting. But read between the lines, and there’s a lot to learn about the craft of negotiation. You won’t drown in legal information. Most of the ideas of structured negotiation are simple human ways of solving a problem without relying on deep legal formalities. That makes them easy to “translate” into other situations. Imagine a team using this approach to figure out how to meet UX requirements while still having a technically feasible product.
One of the basic underlying principles will be familiar to anyone in UX: If you can empathize with another person’s perspective and needs, you are already on your way to finding common ground. In any negotiation, it’s important to be able to bridge different worlds. Perhaps that’s why the detailed descriptions of the process are written in clear language, modeling a style of communication during negotiations or in writing letters that promotes understanding. That doesn’t mean there’s no legal language, but the examples are rare.
One of the most striking things in the book is how the language of structured negotiation helps change the level of emotion and promote successful collaboration. It replaces the war-like conventional language of lawsuits with words that suggest a different way to work. “Demand letters” become “opening letters.” “Plaintiffs” are recast as “claimants.” “Opposing counsel” becomes “counterpart lawyers.” This may seem like mere semantics, but Feingold suggests that it has a profound effect. Discussing the word “discrimination,” she says:
“Labeling someone a discriminator does not encourage creativity and can shut down inventiveness. When accused of discriminations, the inclination is to defend past behavior, not look to future possibilities.”
In a legal context as in UX design, telling the story of the impact of the problem on real people has more effect in motivating change.
Another key part of the theme of collaboration is that—unlike most lawsuits—the structured negotiation process brings all of the experts into the room, both to reach an agreement, and to work together to make it happen. It means that people in technical roles are just as important as those in business or management roles, and there are fewer misunderstandings about what is technically possible.
Even if you are not interested in the process of structured negotiation, jump to the last section of the book on how to cultivate an attitude of collaboration. She discusses the mindsets that have led to success, saying that they are not based on personality, but are a skill built up with practice.
“As a negotiator I decide to be patient in the same manner I choose which documents to review or when to schedule a meeting. I practice being trustworthy just as I stay up-to-date on legal cases to protect negotiating turf.”
The keys to developing your collaborative muscles are:
- Practicing active patience, used as a tool to move a process forward
- Avoiding negative assumptions, and letting go of judgments
- Being trustworthy yourself, and trusting others
- Practicing grounded optimism, based on experience and evidence
- Appreciating and recognizing the contributions of others
- Being friendly and kind to advance a process
- Increasing empathy, and understanding of others
If you’d like to hear Lainey talk about her work, you can listen to an episode of “A Podcast for Everyone” that I recorded with her in 2014, just as she was starting to write “Structured Negotiations.”
Practice Grounded Optimism
When I learned about “grounded optimism,” I knew it deserved a place in the Structured Negotiation lexicon. Optimism without the adjective is a glass-half-full platitude. Grounded optimism is the belief that something will work based on experience of why and how it has worked in the past. In Structured Negotiation, optimism is grounded in the activities that have contributed to past successes: writing an opening letter that avoids conflict-heavy language, executing the ground rules document, and sharing expertise to focus on solution. Being optimistic about the potential outcome of a negotiation keeps me focused on the tasks needed to get there.
When I believe an issue in a negotiation will turn out favorably, others around me start to believe it too… A blind computer programmer who helped spearhead the accessible banking initiative in Chicago, [advocate Ann] Byrne has no trouble identifying as an optimist. “If you don’t expect a lot, your expectations can limit achievements. My parents always told me: ‘don’t under-expect.’” By practicing optimism, expectations are kept high and parties avoid unfounded assumptions of potential failure. By making sure our optimism is grounded, we take the steps necessary to meet those expectations.
… I agree with author, social reformer, and political activist Helen Keller: “Nothing can be done without hope and confidence.” … When I exude confidence that problems can be solved without the expense and stress of a court action, those around me start believing it too.