STRUCTURED NEGOTIATION

Today I continue my series on the alternatives in ADR. In this series, based on an article that I drafted for my upcoming workshop with the Virginia Mediation Network in Richmond, Virginia, I review the options that parties can select under the umbrella of Alternative Dispute Resolution or ADR. Today, I’ll continue to describe options that do not include a neutral facilitator, such as a mediator or arbitrator. Structured Negotiation is another way attorneys can approach cases that formerly could only be resolved through litigation.

The Structured Negotiation process occurs without a lawsuit on file and avoids many of the perils of litigation, including the expense, the involvement of third-party decision-makers, and the complicated procedural rules.

structured negotiation is an adr process

Created by attorney Lainey Feingold, she developed the concept when working on civil rights litigation when banking institutions failed to create ATMs that were equally accessible by all consumers.  She organized the client group who wanted to focus on resolving the issue by finding a solution, rather than becoming embroiled in litigation.  The banking institutions agreed to the process and together worked on a solution to the problem.   

Unique qualities: 

This negotiation process creates an opportunity to establish an inclusive, consensual process to address all issues that contribute to the conflict and create a resolution that is often “out of the box” and satisfies the affected parties.

Steps or stages:

The process begins when a party agrees to the process and retains an attorney.  The attorney then explores the potential for structured negotiation with the other party, generally through a letter of introduction.  Once both attorneys and parties agree to the process, they enter into a Structured Negotiation Agreement that outlines their ground rules. They engage in informal discovery, and participate in meetings and negotiations to explore options to reach short and long term goals.  Once the parties agree to remedial action, they may address the financial issues and settle.  The process continues when the settlement is implemented, and the parties monitor the implementation and make modifications by consensus.   Since the parties have agreed to the terms, court involvement is often unnecessary.

conference rooms are more comfortable for conflict resolution than court rooms

Advantages:

  • Less expensive than litigation.

  • Private.

  • Permits parties to make decisions.

  • Provides greater resources to address complicated issues by bringing everyone together with experts in the context of problem-solving meetings.

Disadvantages:

  • It may not be possible to toll the statute of limitations.

  • As a new process, some attorneys are reluctant to engage.

  • When both financial and policy issues are presented, the insurance company structure creates challenges in setting up ground rules and processes.

Best for:  Civil cases, “Impact” litigation.

For more information:  Lainey Feingold, Structured Negotiation, (2016).

FREE WEBINAR ABOUT RESTORATIVE JUSTICE AND LAWYERING

On December 7, 2016,  I’ll be joining Howard Zehr for a webinar on Restorative Lawyering.  Restorative Lawyering is a model of practicing law that I have been developing along with colleagues such as Marshall Yoder and Susan Marcus.  Restorative lawyering adopts the guiding principles and values of restorative justice.  In doing so, we look at each situation, problem, or conflict and often start by asking,  “Has there been harm that needs to be addressed?” and “What can be done to make right the wrongs?”  These fundamental questions, central to restorative justice, change the focus from what statute or rule has been violated to what can be done to make things better.  

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KEEPING YOUR BENEFITS AFTER YOU SETTLE: IT IS NOT SIMPLE!

Recently I volunteered with the West Virginia State Bar to answer phones on Tuesday night when we offer free information by calling a toll free state-wide hotline.  I had a number of calls, but one of them was very disturbing. This caller lost her in-home services provided by Medicaid when her attorney settled her case without addressing this issue.  For a very small settlement, the caller lost her in-home service provider and risked being placed in a nursing home.  With proper planning, this did not have to happen!

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CIVIL MEDIATION--WHAT HAPPENS AFTER THE MEDIATION?

Moving on after you have suffered an injury or loss can be difficult.  Mediation is often the best way to to resolve a civil case and be able to move on.  If selected early, mediation saves time and money for both parties in legal expenses.  Our office encourages clients to participate in mediation at the earliest possible date, often BEFORE filing suit, to be sure to gain the most benefit possible from early resolution.  In many states mediation is required in all civil cases before a trial is scheduled.  Even when you don’t reach an agreement during the first session mediation can be helpful.  About 98% of all civil cases settle before trial so it is likely that your case won’t go to trial.  Sometimes the progress made in mediation sets the matter up so that it will be more likely to settle quickly and fairly following the mediation.  Sometimes a further session is helpful.  If your case is resolved in mediation, you can expect a few steps to finalize the resolution.

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LIMITATIONS ON DO-IT-YOURSELF PROJECTS: TEN REASONS YOU SHOULD TALK TO AN ATTORNEY BEFORE YOU SETTLE YOUR CASE

HGTV expert Ty Pennington reports that do-it-yourself projects are more popular than ever.   He attributes economic reasons for homeowners to take on projects such as hardwood flooring since these projects often add value to the home.When legal decisions are involved, do-it-yourself may be penny wise but pound-foolish.   When you are injured in an accident, resolving your case without a lawyer might be a bad decision.  Our office provides a free consultation to victims following an accident.  During that free meeting, we will review your case and help you map out a full recovery to your injuries.

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WHAT TO EXPECT IN MEDIATION

If you have never participated in mediation, you may wonder what’s involved. While every situation is different, there are a few things you can expect regardless of the type of case or mediator.  Our office accepts cases for mediation including elder mediation, family mediation, divorce mediation, child custody mediation, civil mediation and mediation of insurance disputes.  With offices in Washington DC and West Virginia, we are available to answer your questions and help you to evaluate how mediation may help you resolve your case faster and more economically than litigation.

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DAMAGES: WHAT CAN THE VICTIM EXPECT?

Recently, the horrific chemical spill near Charleston left many residents without water for weeks.  Several have already filed suit.  What types of damages will these victims seek?  What are the kinds of damages any victim of an accident recover? Most victims of negligence, whether it be from a car accident, a slip and fall, or industrial accident, can recover their medical expenses, their lost wages, and amounts to cover their pain and suffering.  

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FAST AND FAIR: HOW TO GET WHAT YOU WANT (AND WIN YOUR CASE) WITH EFFECTIVE NEGOTIATION

Negotiation often provides a fast and efficient way to resolve a conflict.  With the stalemate currently paralyzing the U.S. Congress, we could all benefit from some skilled negotiation.  Similarly, in our day to day conflicts and in many legal proceedings, a skilled negotiator may provide a faster and cheaper resolution.  

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