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Lainey Feingold's Book on Structured Negotiation

by John Lande
October 2016

Indisputably

John Lande

I recently had a chance to talk with Lainey Feingold, the author of a great new book on negotiation, which she describes below.

Before I get to her description, I want to say a few words about why I think her book is particularly important.  I have been writing about early dispute resolution, especially planned early dispute resolution (PEDR), for almost a decade.  (Click here for a description of my book and, at the bottom of the page, links to various articles.)

The potential benefits of PEDR are obvious to us in the DR community, including reduced time and expense devoted to disputing, increased opportunities for future-oriented problem-solving and protection of relationships, reduction in sunk-cost rationalization for continued disputing, reduction in risk of conflict escalation, etc.

Reviewing law school negotiation textbooks, I found that they generally focus on the final stages of negotiation, with little or no discussion of the overall disputing process, including the very important initial stages.  I think that this is a significant omission because the initial stages often have major impacts on the ultimate process and outcome.  My book describes how lawyers can manage the overall process, starting from the initial contacts between lawyers and clients.

Lainey Feingold’s book also provides practical guidance for the overall process oriented to negotiating good agreements starting from the outset of a matter.  Indeed, she tries to initiate major negotiations before filing suit.  Her book describes how to:

  • prepare a structured negotiation case
  • establish ground rules
  • share information and expertise
  • move negotiations forward
  • handle unexpected developments
  • negotiate and draft settlement agreements
  • use post-settlement strategies (e.g., enforcing agreements and dealing with the media)

So, with the release of Lainey’s new book, I’m glad that there is more attention to the values and techniques of PEDR.

(BTW, Michael Moffitt wrote a wonderful piece about the value of early negotiation, Pleadings in the Age of Settlement, 80 Indiana Law Journal 727 (2005).  He argues that pleadings are structured to be adversarial, which “make[] it more difficult to find wise and efficient settlement[s].”   He advocates a rule requiring consultation between parties before they can file suit.  This is a terrific idea which, alas, I assume is not likely to be widely adopted as a legally-binding rule but lawyers and parties can do this on their own initiative using techniques that Lainey suggests.)

Chatting with Lainey reminded me that there is a substantial cohort in our DR community who attended Hastings Law School in the 1970s and 1980s.  In addition to the two of us, this cohort includes Claudia Bernard, Howard Herman, Sheila Purcell, Barrie Roberts, Peter Robinson, and Amy Wind.  (I probably omitted some folks in this group and, if so, I apologize.  Please add their [or your] names in a comment.)  At that time, Hastings culture was not particularly open to DR, to say the least.  Subsequently, Hastings became a magnet for many wonderful people in our community, with a great program headed by Sheila Purcell.

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Here’s Lainey’s description of her book and an upcoming speaking engagement.

I’m excited to let Indisputably readers know about my new book, published last month by the ABA Section of Dispute Resolution.Structured Negotiation | A Winning Alternative to Lawsuits is a nuts-and-bolts guide for attorneys and advocates in all fields who want an effective new strategy to resolve legal claims that does not involve lawsuits.  I hope it will be useful to law students (and their professors!) looking for new tools that focus on solutions, emphasize relationships, and avoid conflict.

Structured Negotiation is a dispute resolution method that my clients, co-counsel, and I have used for two decades to resolve complex disability rights claims, primarily technology and information access claims of the blind community.  Walmart, Bank of America, CVS, the City and County of San Francisco, and Major League Baseball have participated in the process – no lawsuits needed.  The book is full of stories of successful negotiations with these organizations and many more.

You can read more about the book here, where you will find a 10% coupon code for use when ordering the book from the ABA.

Advance praise for the book includes comments from David Hoffman, founder of the Boston Law Collaborative, who noted that Structured Negotiation is a process “bearing strong similarities to Collaborative Law, and integrating well with mediation” and from Daniel Bowling, chair of the Dispute Resolution Section’s publication board and my book-writing mentor.

I will be speaking about the book on November 15 as part of the Harvard Law School Program on Negotiation speaker series.  Click here for more information about that presentation.

I would welcome opportunities to speak about the book to other interested audiences around the country.  If you would like to have me speak at an event at your school or organization, or know someone who might be interested, you can reach me by email or phone, at 510.548.5062.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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