Thanks to Lainey Feingold for this guest post. Lainey is an author and disability civil rights lawyer. Her book, Structured Negotiation, A Winning Alternative to Lawsuits, was published by the Dispute Resolution Section of the American Bar Association in 2016. She is the 2017 individual recipient of the Section’s John W. Cooley Lawyer as Problem Solver Award.
Later this week I will be presenting at the annual conference of the Dispute Resolution Section of the ABA. The Section published my book last year and I’m excited to be sharing my ideas and meeting and learning from leaders in the field.
Many of those I’ll meet are professional neutrals—private mediators and arbitrators or court-based neutrals. Many others are academics, teaching the next generation of lawyers how to be collaborative amidst the conflict-based culture of our profession.
I’m not any of those things.
I’m a disability civil rights lawyer who represents blind people seeking access to technology and information. Before I became a disability rights lawyer over 25 years ago I represented labor unions and women and minorities in civil rights employment cases. I’ve never been a neutral. Never been in the middle.
Or have I?
Advocate as Peacemaker
For the past two decades, my clients, co-counsel, and I have negotiated national accessibility agreements with large organizations like Bank of America, Walmart, Major League Baseball, and the City and County of San Francisco. Enforcing rights guaranteed by the Americans with Disabilities Act and other laws, we reached these agreements without any lawsuits on file, using a dispute resolution process called Structured Negotiation.
Structured Negotiation, the subject of my book, gives parties the tools to talk—and listen—directly to each other. Third-party help from a mediator can integrate well with the process, but is not required. In close to 75 cases I’ve negotiated with Structured Negotiation (and without lawsuits), I’ve called upon a mediator just a handful of times.
In all my cases I was, metaphorically, on one side of the table with my clients. But over time, I discovered the table was round.
In writing my book about Structured Negotiation I was introduced to a book that proved crucial to my thinking about the work my clients and I had done for two decades: Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution edited by Daniel Bowling and David Hoffman.
The book explores the qualities that allow mediators to “bring peace into the room.” Although I’ve never been a neutral “in the middle,” it struck me that lawyers practicing Structured Negotiation also “bring peace into the room.” Reading the essays in Bowling and Hoffman’s book I realized that “bringing peace” and being a strong advocate are not mutually exclusive.
To the contrary, being a peacemaker can serve the advocate’s goals just as it serves the mediator’s.
Understanding that participants in Structured Negotiation are peacemakers gave me new insight on the process my colleagues and I had nurtured since our first cases on accessible banking services in the 1990s.
And a new understanding of the possibility of the middle.
The middle is not a mythic center, but a place of common ground
Perhaps the “middle” is not only a place for a skilled neutral seeking compromise from reluctant advocates. Instead, maybe the “middle” is the common ground all parties seek in a dispute. As an advocate, my role is to help the parties get there, never losing sight of my clients’ goals.
Looked at in this new way, the middle is not a precise center point between two opposing views. When my blind clients needed ATMs that talk so they could use them independently, the middle had Talking ATMs, although my clients may have compromised on the timing of particular features.
It was the same during Structured Negotiation with the nation’s largest pharmacy chains for prescription labels that talk, so blind people can safely take medication. As an advocate in Structured Negotiation, my job was to convince our negotiating partners in the pharmacy industry that the middle has talking labels.
The elements of Structured Negotiation made that convincing possible. An opening letter that invites participation instead of demanding. Collaborative meetings instead of one-sided, often bullying depositions. Relationships that emphasize trust instead of distrust; patience instead of its opposite.
Of course, sometimes there is no middle, no common ground. Sometimes collaborative peacemaking must step aside for a judge’s order. In the new political reality of Muslim bans, attacks on public schools, and threats to freedoms of every sort, traditional litigation has already proven an indispensable tool. And it always has been. But it is not the only tool in the advocate’s toolbox. Peacemaking in its various forms is in there too.
Fear keeps people from common ground; listening gets them there
In my years of negotiating without lawsuits, I have seen fear as a key obstacle in an advocate’s ability to be a peacemaker. In my cases about website and mobile app accessibility, fear that the law will change, technology won’t work, or the cost will be too high are common. In other fields the fears will be different but the tools to dissolve those fears are the same. Talk openly. Listen carefully. Don’t make the lawyerly mistake of assuming the ‘other side’ is hiding the ball or withholding the truth. Provide a forum for clients to get to know each other. Show don’t tell.
I’ve seen firsthand that helping everyone around the table get past fear is not reserved for a neutral positioned between opposing parties. It is the job of the peacemaking advocate as well.
All this leads me back to this week’s ABA conference this week. It reminds me to listen carefully to the words of the traditional peacemakers—the private and court-based neutrals—and to the law professors and clinical directors. I know they will be helpful to my clients and to me as we continue to be the best advocates we can be, seeking a middle that works for everyone.
Visit Lainey’s website or follow her on Twitter for more information. The title of this piece came from the theme song of her favorite TV show, Grace and Frankie. The song was written by the Stealers Wheel and covered for the show by Grace Potter.