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.
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.
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.
Less expensive than litigation.
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.
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).