Reading Lainey Feingold's (2021) "Structured Negotiation: A Winning Alternative to Lawsuits" - 2nd Edition (Cont'd)
Chapter 3: Is Structured Negotiation the right strategy?
Overview: Is Structured Negotiation the right strategy?
Chapter 3 leads us into Stage One of the Structured Negotiation process – Preparing a Structured Negotiation Case by asking the threshold question: “Is Structured Negotiation the right strategy.”
Feingold concludes the chapter by identifying types of disputes that may not be well-suited to the process. These include:
Claims in which parties are deliberately seeking judicial precedent;
Claims in which deep seated hostility exists between parties and neither party is ready of willing to move beyond the stage of nursing grievance and hostility;
Claims in which the would-be defendant (in our Veterans’ ADR program we would call them a “responder” has a strong financial or ideological motivation to avoid settlement.
These situations don’t automatically rule out Structured Negotiation. As Feingold reminds us:
Do not assume an organisation will refuse to negotiate, or that an individual will cling to the status quo.
She goes on to observe that a successful case needs more than viable claims and a cooperative counterparty. There must be trust. But not just on the part of the claimant. The responder must also trust the process and have sufficient institutional or political cover to act within it.
This insight holds particular weight for our Veterans’ ADR program, where the ability to act outside narrow statutory rules often depends on discretionary frameworks, relational trust, and broader enabling policies.
Chapter 3 includes examples of successful negotiations in Private, Technology, Public and Non-Profit sectors from which some important lessons can be taken.
Industry precedent may be as important as legal precedent
Citing the Walmart negotiation, which resulted in the accessibility upgrade of 10,000 Point-of-Sale devices, she writes:
The Walmart POS settlement did not produce judicial precedent binding in future cases. Structured Negotiation never does. But lawyers and clients who shy away from the method for that reason ignore a different type of precedent. Working with large institutions outside the courthouse I have seen repeatedly that industry precedent is real and motivating. Industry precedent gives companies permission to act after a few leaders make the first move.
It is worth focusing on that expression, “permission to act.” Structured Negotiation done well can create safe commercial space for moral courage – or as Feingold puts it – to do the right thing.
Once the “right thing” is demonstrated and normalised through industry practice, it gains additional force - almost like a condition attaching to a company’s or sector’s social licence to operate. As these precedents accumulate, we may well ask: “Now that others are doing the right thing, why are we not?”
“The Right Thing to Do” may be established in relational rather than in legal space
Drawing from experience gained from Structured Negotiation in the Technology sector, Feingold observes:
… the relationships formed among counsel and clients in Structured Negotiation motivate parties to find common ground, instead of clinging to oppositional legal theories. When challenges arise, we have a phone conversation [or three] and sort it out. Companies are not encouraged to wait for a court ruling or to see what happens with a pending motion or government regulations before doing the right thing.
Lainey Feingold returns often - and with conviction - to the idea of “doing the right thing.” In her context, the right thing is frequently visible: access, inclusion, dignity. The legal, moral, and institutional layers are more closely aligned.
In our context - working with veterans, public agencies, and deeply layered administrative systems - ‘the right thing to do’ is not always self-evident. It can be buried beneath technical exclusions, discretionary silences, historical blind spots, or out-of-scope policy framings. Often, no one in the system feels authorised to name it, let alone act on it.
But that’s where Structured Negotiation becomes more than a legal strategy. It becomes a conversation space- a container secure enough to ask:
What is the larger purpose we are meant to be serving here?
What value sits one layer out from this rule?
What moral or public interest imperative might guide us, if we had permission to see it?
These questions take on added significance in Public Sector negotiations. In these cases, Structured Negotiation becomes more than a process. It becomes a frame for moral discernment. It enables the institutional equivalent of ethical reflection, especially when the law provides little more than procedural containment.
Public sector negotiations bring unique challenges - and must be carefully evaluated
Encouragingly, Feingold comes down in favour of a view that claims against public entities can be handled in Structured Negotiation. But there are some caveats.
Feingold notes that:
The general public is an ever-present backdrop when negotiating with a government agency.
We noted something similar when writing recently about The Place and Practice of Evaluation in Facilitative Dispute Resolution:
… in administrative or public sector settings, … there is always a silent, non-present stakeholder: the nominal citizen. The taxpayer. The future system user.
However, Feingold does not see this as necessarily being a disadvantage. Writing about her experience in negotiating the San Francisco pedestrian signal claim, she writes:
Pressure from outside the bargaining room helped hold all negotiators accountable.
We need to pause and reflect here. It is not just the public sector negotiators who are accountable to the public – it is all negotiators. That includes legal and advocacy professionals, whose duties to individual clients may sometimes need to be held in constructive tension with broader systemic responsibility.
What might that mean for an advocate or legal representative working within a model that requires zealous pursuit of the interests of the client? At what point might the interests of the client need to take account of, and align with, the interests of a broader cohort of stakeholders? And what self-regulation is required to maintain a sense of equanimity in such a situation? What negotiations need to take place within a party’s negotiating team?
Be prepared for a slow-paced negotiation
Writing further in relation to Public Sector negotiations, Feingold warns:
Clients and counsel must be prepared for the likely slow pace of structured negotiation with the public entity...
There are two important messages here.
Firstly, public sector responders may not have the same flexibility or agility as private sector responders. The process may not be any slower than litigation, but it may seem slower because it is not punctuated by procedural milestones in the same way litigation proceeds through different phases towards trial and judgment.
Secondly, progress follows upon understanding.
This suggests that significant effort may need to be directed toward building understanding - in the right quarters - before progress can begin.
That might require that the Structured Negotiation be designed to meet an educative need for “significant learning”, which adopting L. Dee Fink’s (2013) taxonomy might extend to an appreciation of the human dimension of the claim, care about the subject matter of the claim - leading to the energy to learn more and contemplate change, and forward learning or learning how to learn within the Structured Negotiation process.
These layered demands - relational, pedagogical, and strategic - may stretch the traditional boundaries of dispute resolution. But they also reveal the deeper potential of Structured Negotiation when adapted for complex, value-laden public contexts.
Let’s flag that for the moment and come back to it after we have read and reviewed the remaining Stage 1 chapters. As we move forward in reviewing Stage 1, we’ll continue to ask: what kind of trust, understanding, and design will this case require?
Structured Negotiation, at its best, gives us space not just to resolve conflict - but to learn how to live more ethically within it.
Engage
1. Framing the Right Strategy
In your experience, what kinds of disputes feel like they might benefit from Structured Negotiation - but don’t get the chance?
Have you ever seen an institution decline an opportunity to negotiate because they lacked the “cover” to act? What might have helped?
2. Trust, Cover, and Readiness
Feingold says a successful case requires not just viable claims but trust in the process. What might that trust look like - for claimants, responders, or advisors?
What kinds of institutional or political “cover” might public officials need to say yes to the right thing?
3. Legal vs Relational Precedent
What role does industry or institutional precedent play in your field? Can it ever substitute for formal legal precedent?
Have you ever experienced a moment where a “relational right thing” became clearer or more compelling than a legal one?
4. Pace, Pressure, and Accountability
Feingold notes that public sector structured negotiations can feel slow. What kinds of accountability or encouragement can help keep them moving?
When public interest is in the background, how do we balance zealous client advocacy with broader ethical responsibility?
5. Structured Negotiation as Learning Space
What opportunities exist within Structured Negotiation to design for significant learning - for both parties?
If you were preparing a negotiation team for a structured process, what kinds of learning outcomes would you want to build in?
References
Feingold, Lainey. (2021) Structured Negotiation: A Winning Alternative to Lawsuits, Second Edition, A11y Books. Kindle Edition.
Fink, L. Dee (2013) Creating Significant Learning Experiences: An Integrated Approach to Designing College Courses, Jossey-Bass.