SEPTEMBER 7, 2017
GAME THEORISTS commonly distinguish between cooperative and competitive negotiation, wherein the former participants look for mutual gains rather than gains at each other’s expense. Robert Axelrod’s classic The Evolution of Cooperation lays it out clearly. Famous negotiation games such as Gerald Williams’s “Win as Much as You Can” show that cooperation in negotiation can result in greater wealth, or greater utility however measured, for each negotiator and for the group of negotiators as a whole, and Anatol Rapoport’s “Tit-for-Tat” negotiation strategy sets forth simple rules that claim to maximize the chances to establish and maintain utility-maximizing cooperative negotiation in any situation.
While Lainey Feingold’s Structured Negotiation does not discuss any of these intellectual antecedents, it nonetheless offers valuable pointers on how a cooperative negotiation strategy similar to Tit-for-Tat can be implemented in real-life negotiations over certain types of cases involving alleged violations of the Americans with Disabilities Act. The ADA claims described in the book are all of a feather: technology-intense claims (accessibility of websites, ATMs, et cetera) against huge companies (Bank of America, Walmart, et cetera) under powerful pro-consumer statutes with attorney’s fees provisions (the ADA) brought by those companies’ customers — and very sympathetic customers at that, those making their way in the world with disabilities.
Rapoport’s “Tit-for-Tat” consists of three rules: begin your negotiation cooperatively; if your counter-party does not reciprocate but rather responds with a competitive move, reciprocate by being competitive yourself; and once your counter-party learns their lesson and returns to cooperation, forgive and immediately return to cooperation. Game theorists extol the universality of this strategy, as does Feingold. Yet ironically, much of Structured Negotiation undermines this hypothesis, and leaves the reader wondering where, if anywhere, this strategy will work outside of the narrow band of Americans with Disabilities Act cases that are the book’s subject.
The weakness in the book is that, despite its commendable exposition of the theory and practice of structured negotiations, the book does not seriously discuss when and where Structured Negotiation techniques will and will not work — indeed, the book offers the reader no real guidance as to how to tell when Structured Negotiation techniques will work. Its case studies are limited to a subset of ADA cases, and Feingold acknowledges that even in those cases, Structured Negotiation techniques are not always effective.
Structured Negotiation is written for lawyers. For some lawyers, cooperative negotiation does not come easily. There are those for whom competitive negotiation is more natural and others who have been taught, and learned well, that the only good negotiation is competitive negotiation. Yet game theory literature shows that what is “good” negotiation is situational. Sometimes, competitive negotiation is necessary and effective. Other times, it is not. So, if you think that a situation calls for cooperative negotiation but your negotiation partner reflexively thinks not, both sides are likely to lose if a competitive negotiation ensues. What can you do?
A disability rights lawyer since 1992, Feingold gives sound advice, particularly in the chapter “Cultivate the Structured Negotiation Mindset,” which includes subchapters with headings like “Practice Active Patience,” “Avoid Negative Assumptions,” and “Be Trustworthy and Trust Others.” While she gives examples, it is still challenging to move beyond exhortation. But even exhortation can be valuable. It helps keep these helpful mantras top-of-mind, making it more likely that they will be observed and that a cooperative negotiation will indeed take place.
But if Structured Negotiation does not work outside the narrow ADA context Feingold describes, we must ask how valuable it is to the reader. Take this bold assertion made early in the book:
For two decades, [Structured Negotiation] has resolved claims under the Americans With Disabilities Act (ADA) and related state laws. But I believe Structured Negotiation is a method with application beyond disability rights. A wide range of civil claims that can potentially be settled without judicial intervention are ripe for the process if the practices and principles outlined in this book are followed.
Curiously, Feingold presents no evidence to support this. Which civil claims are ripest for the process? Which are the least? How can the reader tell whether their situation is in that “wide range” or not? What about ADA cases — and some ADA cases more than others — makes them particularly ripe for Structured Negotiation? At least she recognizes that “Structured Negotiation is a dispute resolution process particularly suited to technology claims,” but we are not told why.
At later points, she even undermines the proposition that Structured Negotiation is well suited for a wide range of civil claims:
When might Structured Negotiation not be an option? If counsel and claimants are deliberately seeking judicial precedent. […] Structured Negotiation is also challenging when deep-seated hostility exists between parties, and neither is willing to put enmity aside. […] Structured Negotiation may also not be the best option when the would-be defendant has a strong financial or ideological motivation to avoid settlement. And if requested remedies include a class damage payment to a sizeable class, or a multi-million dollar damage claim that is unlikely to be paid absent a court order, Structured Negotiation will likely not be a viable strategy.
A lawyer might look at this list of exceptions and ask: other than the ADA cases on which Feingold works, what’s left?
She goes on to exclude even more cases from the wide range for which Structured Negotiation is valuable, based on characteristics of the clients:
Clients with an unrealistic assessment of the value of their claims are unlikely to work well in a collaborative environment. And those uncomfortable with taking small steps toward a larger goal, a useful Structured Negotiation tool, may grow frustrated with the process. […] Clients who refuse to trust anyone on the “other side of the table” are not good candidates for Structured Negotiation.
If presented with this list — clients with unrealistic expectations, impatient clients, and clients suspicious of their opponents — a lawyer would be likely to ask, who’s left?
Feingold lays bare her utopianism when she asks whether Structured Negotiation could work in a case that is about only money damages, and not the injunctive relief that is typically a major component of ADA cases. She expresses that she is “confident” without any real-world support:
[A]n opening letter could be drafted describing the claimant, facts and law underlying the claim for compensation. Counsel could express a firm desire to resolve claims without unnecessary expenditures, procedural posturing, or adversarial relationships. […] Once ground rules are agreed upon, the parties could share relevant information about the monetary claim without expensive discovery or battling experts. An atmosphere of collaboration could allow parties to speak directly to each other (no depositions needed) and agree on payment without the expense or rancor of litigation.
That’s a whole lot of could. Feingold has been practicing Structured Negotiation for over 20 years in the ADA field. Why is there nothing empirical about whether it works in cases that seek money damages, or any other cases outside the ADA field, or about how to distinguish those cases in which Structured Negotiation is most likely to work? Are her techniques useful only when the stars align as they have for her: technology-intense cases; huge, wealthy defendant corporations who can afford technological innovation; a robust pro-consumer statute backdropping the negotiation; and prospective plaintiffs who are the prospective defendant’s customers? If Feingold’s techniques are indeed useful only when these stars align — and she presents no evidence for broader applicability — then the book is of little value to readers who work outside of this limited universe.
Perhaps the root problem with Feingold’s approach to her Structured Negotiation brainchild is her conceit that it is somehow not part of the litigation process. Over and over in the book, beginning as early as page two, she claims that Structured Negotiation “bypasses the traditional litigation framework.” It does not. It functions as well as it does in the ADA framework because it operates, to borrow Harvard Law Professor Robert Mnookin’s phrase, “in the shadow” of the traditional litigation framework, in the context of a litigation framework, and in an integral relationship to it. The companies with which she negotiates know full well that, if they do not work to settle claims without a lawsuit against them, all they will get is the opportunity to settle those same claims with the lawsuit which will then be filed.
Consider for example the way Feingold describes the opening letters she sends to companies to initiate a Structured Negotiation process. These seem to parallel the opening moves in Rapoport’s Tit-for-Tat negotiating strategy, which must be cooperative. She claims, for example, that “there is no place for threats in the opening letter,” and asserts that her opening letters are cooperative. But here is an example of the language she uses: “Rather than file a lawsuit we propose a plan to work constructively with your company/agency in the effective alternate dispute resolution process called Structured Negotiation.”
When company representatives read such a letter, what can they think but that it’s a threat? Upon receipt of such a letter, the company can address the claims the easy way (as part of a Structured Negotiation), or the hard way (as part of a lawsuit).
Feingold goes on to confirm her litigation mentality, albeit sugar-coated, describing how an opening letter to a company is prepared: “[T]he letter should convey that the claimant’s lawyer has thoroughly researched the issues and is presenting a serious claim. How is that done? By preparing the letter in much the same way a lawsuit is prepared.”
A polite threat, perhaps, and likely better than getting served with a summons and complaint, but a threat all the same. As Feingold describes Structured Negotiation, it could not exist outside of or without the specific ADA litigation context from which it was formed.
And, of course, the representation of clients is no less a business for Feingold than it is for other lawyers. She makes clear to companies from the get-go that she intends for them to pay her legal fees under the ADA’s fee-shifting provisions, even though no lawsuit triggering the ADA’s broad remedies is ever filed. Her rose of settlement is always, always, in the fisted glove of the threat of federal court litigation if the company does not play ball.
Maybe, though, the ultimate lesson to take from this book is that the ADA is serving its purpose. Living as we do in 2017, it seems obvious that businesses should make reasonable accommodations for customers with disabilities, be sensitive to their needs, and desire their business. But the ADA had to be enacted because, in 1990, Congress found that businesses were not behaving in what we now consider to be routine and decent ways. The ADA, and particularly its fee-shifting provisions, focused lawyers’ attention on the needs of people with disabilities as never before. The ADA incentivized lawyers to organize classes of claimants and get businesses to behave better toward them. Today, we easily see more accommodating behavior by businesses toward persons with disabilities as a societal good. That Feingold has figured out a way to achieve that societal good, at least in some cases, without burdening the taxpayer-financed court system with additional disputes, is also good. And so for her work she is to be complimented, even if the utopian claims she makes on behalf of her methods are dramatically overblown.