Reading Lainey Feingold's (2021) "Structured Negotiation: A Winning Alternative to Lawsuits" - 2nd Edition
CHAPTER 2 — THE LANGUAGE OF STRUCTURED NEGOTIATION
Chapter One introduced us to the origins of Structured Negotiation in user experience and relational narrative. In Chapter Two, Lainey Feingold takes us into its language of practice - the language that makes space for creating collaborative solutions.
Language Matters
Care-full attention to language is not about being politically correct or “woke” - expressions that, sadly, have become misunderstood and unfashionable. Let me draw on an Australian idiom and make it plain that this is about “being a wake-up” to the way in which language both harms and heals.
(I could say something here about “drongos” - another Australian idiom referring to those who are not ... “a wake-up.” But I’ll let you make up your own mind about that!)
Lainey Feingold is not just asking us to reword our letters. She is asking us to reshape our inner posture - to speak (and write) in ways that disarm defensiveness, refuse combat metaphors, and create space for understanding.
What struck me in this chapter was how much of what Lainey describes aligns with our work designing the Veterans’ ADR Program - because if ever there was a context in which combat language might prevail and shape outcomes, it would be the veterans’ ADR context, where that language is deeply ingrained through training and service.
Structured Negotiation invites us to reorient - to speak, not from reflex or rhetoric, but from care, clarity, and relationship. That shift matters. Especially here.
Language Shapes Posture
Feingold writes:
“…now I practice law with a different vocabulary. Today I know adversarial language can thwart a collaborative environment.”
She is clear: words don’t just describe the process. They make it possible.
Carefully selected phrases , tone , and timing are strategies as important as deciding what legal claims to pursue ...
…it is the power of words and how and when we use them that create a collaborative atmosphere .
Litigation is riddled with war words - plaintiff, defendant, demand, opposing counsel. Even some mediators, she notes, talk about "beating up" the parties in the process of mediation.
Feingold rejects this. She writes, instead, in the tone of someone building a relational container, not staging a showdown. Even something as simple as switching from “plaintiff” to “claimant” reframes the context from adversarial to collaborative.
Reflect & Engage
Where in your own writing or practice do combat metaphors sneak in?
If you were to name the parties in your process by their function or relationship, not by their adversarial roles, what terms would you choose?
Plaintiffs and Claimants
Feingold has rejected the word “plaintiff” in favour of “claimant”. In our Veterans' ADR Program, we tried several alternatives - including claimant, client, and petitioner - before settling on "Veteran".
Veteran is a storied and relational term that acknowledges both our veterans' service and our responsibility to provide care-full support in transition. It is the language of neither litigation nor dependence. Rather it is language that acknowledges our relational duty to care.
Likewise, we refer to other parties by their role: Department, Bank, ESO - or more generically, responders, rather than respondents. This choice draws quietly on Joan Tronto’s ethic of care. It places the parties in a responsive relationship, not a defensive one. The shift is subtle but significant. It frames each party as an agent in care and recognition, not just a procedural counterpoint.
Language as Invitation
Feingold also discusses the transformation of her “demand letter” into an “opening letter” - not just to soften tone, but to set a different expectation. Not a shot across the bow. A gesture toward dialogue.
The Structured Negotiation letter that begins the process should not be provocative.…
Several years ago I even stopped referring to that correspondence as a “ demand letter , ” referring to it instead as the “ opening letter . ”
That shift matters for us too. When a veteran enters the ADR process, they often carry trauma, complexity, and injury. It is important to describe what has happened - but not to accuse. What a solution often requires is recognition rather than proof - especially proof that may carry the risk of re-traumatisation.
So, we don’t lead with allegation. We lead with story. We describe, not label. Where we can, we show, not tell. Because where blame invites resistance, story invites care.
Reflect & Engage
If you were helping someone draft an opening letter or email in a conflict setting, what tone would you aim for?
How would you help them convey the seriousness of their experience without triggering unnecessary defensiveness?
Avoiding Trigger Words (Without Avoiding the Issue)
The earliest opening letters chastised companies for illegally discriminating against our clients. In some of those letters , that phrase appears two or three times in the first few pages . The correspondence did bring companies to the bargaining table . But today , except when citing provisions of an anti - discrimination law , I am cautious in using the word “ discrimination . ”
Feingold is careful not to abandon legal concepts (like discrimination), but she is equally clear about the emotional cost of leading with such terms. Calling someone a “discriminator” may be legally accurate, but it rarely opens space for learning or insight. It centres conflict on the perpetrator’s need for repentance (or punishment), rather than centring attention on the sufferer’s need for care.
It promotes a concept of justice-as-retribution, rather than one of justice-as-redress. Instead, she advocates a narrative process - in which discrimination is understood not just intellectually, but through direct contact with the affected person - not as something done, but as something experienced.
A new line of inquiry
This insight invites a crucial question for us in the Veterans setting:
Can structured negotiation be housed within a collaborative learning environment? Can parties learn - not just negotiate - through story, dialogue, and presence?
This is a direction we’ve now started to explore in WorkAccord Learning. Could structured negotiation (or mediation more broadly) include structured learning as part of its arc? That is perhaps a research question that warrants its own project!
Feedback vs Testing
As you read Chapter 2, pay close attention to Feingold’s shift from “testing” to “feedback”, and consider how it echoes Tronto’s fourth element of care: responsiveness.
Structured Negotiation avoids conflict - based language in an effort to break down the “ us and them ” mentality that infuses litigation .
Substituting the word “ feedback ” for the more judgmental “ testing ” does not impact the quality or quantity of shared information . If even one person is less defensive without “ testing , ” the language change is worth it.
This isn’t just about checking performance. It’s about noticing how care is received, adjusting accordingly, and keeping both the relationship and the solution open to growth and improvement.
Reflect & Engage
Where in your own practice might a shift in language make space for deeper responsiveness?
What words do you use for process milestones or quality checks? Are they inviting or evaluative?
Persistence and Process Care
Finally, Feingold speaks to the language of persistence - not as nagging, but as care in action. She calendars reminders, uses the phrase “friendly follow-up,” and resists the temptation to assume delay = bad faith.
Persistence is a critical skill in Structured Negotiation , and the language of persistence needs careful attention .
It is easy to attribute malign intent to an opponent. It tightens and gives structure to conflict and makes it more palpable. We have to avoid that.
This is something we remind ourselves of often: Structured negotiation is not just a philosophy. It’s a process discipline. It takes emotional regulation, clear systems, and confidence in a slow approach.
Closing Reflection
Chapter Two reminds us that each word we use carries force. It either builds relationship or erodes it. It either generates defensiveness or opens space.
This chapter also reminded me why I increasingly see mediation as more than an event. At its best, it is a care-full presence - one that holds space for meaning-making, attends to cares, and invites trust.
And it requires its own vocabulary. One that is generative, not merely alternative. One that doesn’t just soften the language of litigation, but reimagines what resolution can sound like - and feel like.
That’s what Structured Negotiation does. It re-imagines the world before the conversation begins.
References
Feingold, Lainey. Structured Negotiation: A Winning Alternative to Lawsuits, Second Edition, A11y Books. Kindle Edition.
Tronto, J. C. (2015). Who Cares? How to Reshape a Democratic Politics. Cornell University Press.