I’m always interested in the latest books on disability, technology, and accessibility. Longtime friend of the DVP and Bay Area disability rights lawyer Lainey Feingold recently authored Structured Negotiation, a Winning Alternative to Lawsuits, published by the American Bar Association. Below is an edited and condensed interview with Lainey. Enjoy!
For people who aren’t lawyers, what is Structured Negotiation and how does it differ from litigation?
Lainey: Structured Negotiation is a way to resolve legal claims without filing a lawsuit. It is a process with a structure that encourages people to work together to resolve their dispute. Structured Negotiation has been very successful in improving access for blind people to websites and other technologies and has been used for other disability rights issues too. Litigation is a different process that happens after a lawsuit is filed. Litigation has also advanced disability rights, but the process is usually more expensive, takes more time, and too often gives disabled clients less of a role in the process and the outcome. Litigation has a third party (usually a judge) making decisions if the case doesn’t settle. In Structured Negotiation people talk directly to each other. Instead of expensive experts, the people in Structured Negotiation usually agree on a joint expert. And the expertise of disabled people is more welcomed than in a typical lawsuit.
Litigation is often the first thing people think of when they think of lawyers and what they do but that’s a misconception. Do you think most laypeople know about Structured Negotiation as an alternative to the traditional litigation framework? If not, why?
Lainey: I think people in the blind community and the accessibility community are familiar with Structured Negotiation because the process was born twenty years ago out of blind people’s need for accessible ATMs and websites. But big picture, I don’t think most people have ever heard of Structured Negotiation. One reason is that the media does not like to report on win-win solutions. The Structured Negotiation process has worked with Walmart to get talking prescription labels, with Anthem on accessible healthcare information nationally, with Major League Baseball on websites and mobile apps, and with many others. Since there wasn’t a fight, we don’t get widespread coverage. That is one of the reasons I wrote my book!
To me, it seems like the adversarial process is something people understand–two opposite sides challenging each other with one victor in the end. Structured Negotiation requires more nuance and willingness to come to a solution together. What are the greatest challenges you’ve faced in your work with parties that seem diametrically opposed and unable to identify with other perspectives?
Lainey: I think the biggest obstacle is getting people to the negotiation table to begin with. Sometimes it takes months to convince a company or government agency that Structured Negotiation is the way to go. Lawyers are trained to be distrustful and distrust in the process often pops up right away. Once we are able to convince people of the value of Structured Negotiation, trust develops. Fear is another obstacle that I hadn’t really focused on until I was writing the book. There are so many things would-be defendants have been afraid of – fear about how much accessibility will cost, fear that accessibility enhancements will interfere with other technology, and fear that the fix will not work are some of the fears I’ve seen. The good news is that once people with initially opposing points of view actually get to sit down with each other, information and relationship can usually replace fear.
In your 20 years as a lawyer using Structured Negotiation, can you recall a particularly successful case and what led to its resolution?
Lainey: One of my favorite success stories in the book is our negotiation with Major League Baseball. We did a negotiation that improved the websites of every major league team as well as the sports giant’s mobile app. The main reason it worked is easy: blind baseball fans were involved from the very beginning. Once the MLB lawyers and business folks met these fans, they understood the importance of accessibility. Also, as I explain in the book, we all exercised patience as MLB became comfortable with the idea of accessibility. Patience is an important quality in Structured Negotiation, and something I write about in the book. Not sitting around doing nothing, but understanding that change takes time.
What have you learned over the years working closely with the blind community about advocacy and the disability community in general?
Lainey: Sometimes people think that I sit in my office and decide what company or government agency to pursue in Structured Negotiation next. But it doesn’t happen like that. Every case I’ve handled has begun with advocacy by blind people and/or their organizations. So one thing I’ve learned is that individual advocacy can make a big difference. My colleague Linda Dardarian and I have had many successful negotiations against big companies based on just one or two people coming forward about a lack of access. Sometimes it is a burden to have to be an advocate while living your life, but I have learned that the blind community and the disability community generally is full of generous people who are willing to spend time and energy to advocate to change things not just for themselves, but for everyone.
I appreciated your recent blog post critiquing the 60 Minutes story by Anderson Cooper where you went point-by-point on the failings of that story’s understanding of the ADA and portrayal of people with disabilities. What are the challenges that you and other disability rights lawyers encounter when engaging the public about disability and civil rights?
Lainey: We have a wonderful national organization called the Disability Rights Bar Association, or DRBA. It is made up of lawyers who represent disabled people. Some work for non-profits and others are in private practice, but we all are disability rights lawyers. Yet the 60 Minutes episode did not include anyone from our group. One of the challenges of doing any kind of progressive legal work, ours included, is bucking the [false but prevalent] idea in the culture that lawsuits are bad and that people and lawyers who file them are only in it for the money. It’s hard to get media coverage for my work because there is no fight involved, and that is what the media is looking for.
What’s your advice to journalists who want to do a story about accessibility, the law, or about actual disabled people?
Lainey: My advice to talk to disabled people first. The Disability Visibility Project is a good place to start! Anyone wanting to write about disability rights from the legal perspective should start on the DRBA website and seek out lawyers (we are all listed) with expertise in the particular area they are interested in. Non-profit organizations, like the American Council of the Blind that has been involved in many of the cases described in my book, have people across the country that are available to talk to the media.
Since the inauguration is fast approaching, what are your greatest concerns regarding regulations and laws about digital access, the ADA, and other civil rights legislation?
Lainey: I fear that we will see a roll-back of the great work the DOJ and the lawyers in the Civil Rights Division have done over the past many years to advance not just digital access, but a wide range of important disability rights issues. The Department of Education has protected the rights of disabled students at all levels of education, and that is threatened too. The FCC is another agency that has worked to ensure the communication rights of disabled people, and the new administration is very unlikely to keep up the good work. Sadly Alice, that is just the beginning of what there is to worry about! But the good news is that the disability community and disability rights lawyers have many tools at their disposal to protect and advance civil rights and we are committed to using them regardless of who the president is.
Is there anything else you’d like to add?
Lainey: Three things. First, I encourage people to visit the Speaking Page of my website to discover upcoming events and the About Page for interviews and podcasts about the book. I’ll be doing a free event in San Francisco on January 24 at Hastings Law School, and will be going to Toronto for several events in early February.
Second, you can learn more about my book on the Book Page where you’ll find a code for a 10% discount off the purchase price.
And lastly, I want to thank you so much for being interested in my book and my work. I encourage anyone reading this to support the Disability Visibility Project however you can!
Lainey represents disabled people seeking full participation in all society has to offer. Her principal work is with the blind and visually impaired community on technology and information access issues, including web and mobile accessibility.
Along with co-counsel, she has developed Structured Negotiation, an alternative to filing a lawsuit that emphasizes collaboration and focuses on solution. Using this method, Lainey and her co-counsel have negotiated more than 60 settlement agreements without filing a single lawsuit. She has negotiated these agreements with some of the largest organizations in the United States, including American Express, the City and County of San Francisco, Bank of America, Weight Watchers, CVS, Wal-Mart, Major League Baseball, and Wells Fargo Bank.
In addition to handling her own cases in Structured Negotiation, Lainey assists attorneys across the United States who want to learn the alternative dispute resolution process.
Lainey has long worked with the blind community nationally in successful efforts to obtain Talking ATMs, accessible websites and mobile applications, tactile point of sale devices, accessible (audible) pedestrian signals, talking prescription labels, audio description equipment, and alternative formats including braille, audio, electronic and large print.
In addition to her work with the blind community, she has resolved numerous other cases on behalf of persons with disabilities, including national class actions against Shell and Chevron resulting in ADA implementation at over 5,000 service stations across the country.
Lainey was a founding steering committee member of the Disability Rights Bar Association (DRBA), a national organization of disability rights lawyers.