In EP9, host Oladeji Tiamiyu speaks with Lainey Feingold about the recently released second edition of her book Structured Negotiation, how technology can be used to promote accessibility, and why emotional intelligence is vital to the legal profession.
“Convergence” is a bi-weekly, limited series of conversations with thought-leaders and practitioners at the intersection of dispute resolution and technology. Host Oladeji Tiamiyu will focus on such topics as the role technology has had in resolving disputes during the pandemic, various ways technological tools have historically been incorporated into dispute resolution, and creative use cases that technology presents for resolving disputes into the future.
Lainey Feingold is a disability rights lawyer and an author. For twenty-five years she has focused on technology and information access issues for blind people. Lainey worked on the first legal agreements in the country about Talking ATMs and web access. Instead of filing lawsuits, Lainey uses structured negotiation, a strategy that focuses on problem solving. With this method, she brings together disabled people, businesses, and governments. Together, they work to make tech available to everyone. 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.
Lainey has been the recipient of the California Lawyer Attorney of the Year Award (CLAY), Access Award from the American Foundation for the Blind, ICT Accessibility Testing Symposium Social Impact Award, and a “Legal Rebel” by the ABA Journal.
Structured Negotiation, a Winning Alternative to Lawsuits, 2nd ed.
Soft Skills for the Effective Lawyer
1234 Welcome to convergence with Oladeji Tiamiyu. In this episode I’ll be speaking with Lainey Feingold, a preeminent lawyer in disability and civil rights. Lainey recently released the second edition of her critically acclaimed book Structured Negotiation. This book has been described as “thoughtful,” a “must read,” and “a great tool for moving through obstacles in a collaborative fashion.” During this conversation, Lainey also shares valuable insights on how technology can be used to strengthen accessibility, including with online dispute resolution, as well as why emotional intelligence is so vital to the legal profession. Okay, let’s jump in. Lainey Feingold, you are a preeminent figure in civil rights and disability rights. Thank you so much for joining “Convergence” today.
Well, thank you for having me. I really appreciate it.
Absolutely. Yeah. So you’ve done so much in this space with civil rights and disability rights. So actually, before we dive into the exciting things you’re working on today, I actually wanted to go back a couple of years to when you were 14-years-old, and I’m curious at this time in your life, how you were relating to the world and what some of your aspirations were, and what issues you cared about?
That is a good question. That was a long time ago. You are speaking to me when I am 65. And so when I heard you were interested in that, I was thinking, and I also am very lucky to have my father alive and well at 88. So this morning, I called him I said, “Dad, someone wants to know, what was I like at 14? What do you think?” And he told me two things. One was, he goes, “You always marched to your own drummer, you were always an independent person.” And he shared with me that on his desk, my dad still works, he has a poem that I wrote when I was 10.
And it’s framed, and he read it to me and sent a picture. And the poem’s kind of about justice, and being a person who had privilege, to use 2021 language. That was not the language of me as a 10-year-old. But you know, it talked about poor people and that not everybody has everything that other people have. And so I guess it tells me that even at 14, I had a idea of wanting to do good works in the world. So yeah, I mean, I was 14 in 1970. And I was in a middle-class family, and my dad was a Republican until the late 60s, to be honest with you. So it’s not like I came from any sort of radical space. But, you know, in high school, I was really into independent education. I went to Hampshire College because it didn’t have any grades.
Yeah. Yeah. And that led to law school. And so I think, I think I always cared about . . .
Justice, even though I wouldn’t have put that label on it.
Yeah. So when you were 14, where were you based in the world?
I grew up in Worcester, Massachusetts.
. . . . is about an hour from where you are at Harvard. But in those days, I don’t know if it was my family, or how it was. It was an hour from Boston, and we’d go maybe once a year.
It was sort of a small town, very close community. I’m Jewish. I had a very strong Jewish upbringing, and went to public schools the whole time. And, you know, it’s funny what you remember. I can tell you right now, I knew nothing about disability rights, which is where my life took me. We can get into that. But I was, you know, an early feminist. Then I remember wearing a black armband to school during the moratorium in 1969, which was a big thing. Yeah, I was, I had a good childhood. I was very lucky.
That’s beautiful. And when you’re describing that, and I will just disclose that I’m an optimist — I’ll just say that I’m an optimist — and part of me believes that children at that age naturally have some understanding of what is fair in the world. What is right. They’re aware of, you know, I’m thinking to a YouTube video and, where they’re a group of children and one child receives more food than the other child. And in this YouTube video, all the other children are like, “That’s unfair!” And part of me sometimes feels like, with time, the pressures of life, frankly, and maybe even schooling, we could even say, perhaps grades and needing to succeed, maybe based off of external notions of success, some of that can lead to us being more focused on outcomes, and less interested in what’s going on in the process that leads to something consequentialist, basically. And part of me feels like you being in a school that doesn’t have grades allows some level of flexibility to just think about the issues, not care about whether I’m successful based on outcomes, and just, am I doing what I feel is fair, or right or just in the world? And once again, you might have not have framed it, or set it in, using those words, but I can see some of the systems you put in place supporting greater flexibility and thinking.
Yeah, you know, it’s hard to look back and say, was I always a person, you know, my work is in collaboration and disability rights and what led to that, and are there, that’s why I loved your question about what we like it 14. Because I wasn’t I wasn’t an outsider. And so I didn’t have it from that perspective. But I do think fairness is, fairness is probably a word I use more. I definitely wasn’t talking about justice. But then again, something prompted me when I was 20. I went to college at Hampshire College for two years, and only applied there. That was the only place I applied, because I didn’t want to go to a school with grades. So obviously, that was a big thing. And no SAT scores required. So now 40 years later, it’s finally catching on. And my aforementioned father, who has always been so supportive, and the biggest fan, you know, he was expecting me to go to a different kind of school. Hampshire College was only five years old at the time. I was a fifth class. And, and I went there for two years. And then I drove across country, not knowing anyone in Berkeley, California and moved here and stayed here. So obviously, there are some threads that are through lines.
Yeah. Berkeley and in the Bay Area are such beautiful places. Also, not just geographically, with the natural beauty. But I also find that it is a place that has been at the forefront of social justice issues for decades, you know, and I can imagine going there and being immersed in all of the activism going on, could have also helped in thinking about justice and fairness.
Yeah, I was just thinking about that yesterday, because the idea of replacing Columbus Day with Indigenous People’s Day is catching on, and most of the story said, well, some places like Berkeley, California, have done that for a long time. And I remember coming here, and I think ’91 was the year that Berkeley stopped celebrating that day as Columbus Day and started celebrating it as Indigenous People. And I’m like, “Oh, wow, that’s a good idea.” You know, never thought of that. So yeah, it does feel there’s a certain energy here. Of course, it’s gotten so expensive, that it’s much harder for younger people to come, but . . .
Totally. Yeah. So, Lainey I’m actually just coming off of a truly breathtaking wedding that was actually based in San Francisco. And during their vows, in addition to, you know, committing to one another, they also incorporated really powerful social justice statements about the importance of using love to champion social justice issues they cared about — focused on housing issues, and workers rights issues. When they were saying how love can be used for social justice issues and their work, it really made me think about how this emotion can be so powerful, not just with humans, but also with, like, the type of things we do and how we do our work. And since you are a preeminent figure in disability and civil rights, I was actually just curious how love informs the work you do with the people you do it with?
Hmm, yeah, that’s a good question. There’s a leader in the disability rights world named Alice Wong, who has a wonderful book called Disability Visibility. And I really commend that. It’s a compendium of essays that she’s gathered up from disability justice people. And she also has a project where the tagline is “access is love.” And she’s got some swag around that. And, you know, I don’t use the word love. I’m like a big, I was gonna say I’m a big believer in love, of course. I don’t really use it in my legal, in my legal space. And then in my book, which I know we’ll talk about, I got comfortable saying out loud that, you know, kindness, and empathy, and just being nice, are values that we can bring into the legal system.
And things like patience, where, you know, everybody knows in every sphere of life, they want to be patient, but somehow they get into the legal system and all those things get thrown by the wayside. I guess I haven’t evolved enough to really use “love” out loud in the work I do. So I’m glad you asked about that and I’m gonna be thinking about that.
I actually think, you know, patience, kindness, empathy, are potentially all somewhat interconnected with love and love could include other aspects. And this is what I love about the work you’re doing, and especially your book, when we’re thinking about structured negotiations in many ways, we are trying to find cooperative ways, non-adversarial ways of reaching agreements with people who we might have had non-cooperative relationships with. And patience, empathy, kindness, they’re all really powerful and escaping this pitfall of competition and non-cooperation.
I think so. And I think one of the problems in the legal space is your there’s this underlying assumption that, like, if you’re passionate, you don’t have those things. You know, if you’re passionate, especially about civil rights, and, you know, someone wants to ask me in a talk, it was, I was in Canada, and they said, “Well, how can you talk about patience when you’re talking about civil rights? How can you be patient and kindness?” Why are you going to be kind to people taking away civil rights. And to me, they’re true emotions and feelings, but they’re also strategies. And they’re strategies to advance causes. And that has been my experience. But yeah, it takes a lot of unlearning/relearning to think of what some people call soft skills, or some people call worse, you know, to think that they can really be effective tools to be getting things done.
Yeah, I’m actually strongly in your camp. When I think of civil rights issues. I actually think it’s, it’s really, it’s more difficult to bring about change without understanding all of like, the stakeholder emotions and feelings and arguments. And it might be, it might be that those arguments are things that like I or you or we are opposed to, but at the same time, understanding and being open to listen, through different experiences can also be an opportunity to include more people in a movement, right? When potentially adversarial people realize that the issues can be solved through cooperation. And that understanding each other doesn’t mean that that we gloss over the issues. It’s that it allows, understanding allows us to really appreciate the full context of a given problem. This all goes back to what I said earlier about me being an optimist. I’m too optimistic about these issues.
Well, I mean, honestly, I write about optimism in my book, I think. And Helen Keller said nothing is accomplished without hope and optimism. So I’m a believer in optimism as kind of an approach, but again, as a strategy, because if you can’t, if you can’t have an expectation that it’s going to work out, if you can’t believe that it’s going to work out, if you can’t think there’s a possibility of finding good in people that will bring about the changes that you need, it’s, it’s gonna be rough. And I think that’s a big reason, you know, in the legal profession, there’s just so much stress and anxiety and mental health issues and part of it is people can’t bring their full selves and they have to check some of these core human values, like you say, love, or however you want to call it, you kinda have to check it at the door of being a lawyer. And that doesn’t work. That’s not sustainable.
I agree. So we’ve, we’ve mentioned your book a couple of times, Structured Negotiation, the first edition came out in 2016. And it’s only been a couple of years. But it’s been such a valuable resource throughout the country in providing a roadmap for resolving conflict, really, and introducing the full complexity of how conflicts can be managed and resolved. So you’re now working on the second edition. How are things going there?
Yes, somehow, it’s been five years since 2016. And I wanted to put out a second edition. I wanted to keep the book alive, and it will actually be available for people, definitely, by the end of October, the second edition will be available.
Beautiful, beautiful. So I know that writing a book comes with many complexities, and it’s not an easy process. Hopefully, it is a fun process. But between, you know, the first edition, now, the second edition, how was your experience in writing Structured Negotiation?
Well, you’re right, that it’s not easy to write a book. It was not easy for me, let me just say it that way. And writing the second edition wasn’t that easy, either. Because I do I have a website, and I do a lot of writing, I do a lot of public speaking. So I’m kind of used to putting my voice out there. But there’s something very different about putting it out in a book. I felt a weightiness to it. And each sentence, you can’t do all those tangents about, well, what I really mean is this and don’t take me wrong. And that reminds me that you have to just be really like focused and confident. But I was glad to do it because it gave me a chance to look back on the past five years and kind of distill what I’ve learned about the process from others now that the ideas are more why we out in the world. And think about some of the amazing experiences I’ve had in the last five years. So I don’t know if I’d call it fun. But I’m glad it, I’m glad I did it.
Yeah. And I guess between the first and second editions, what are some of the changes, substantive changes that have come into creation with the second edition?
Yeah, so basically, what I do with the second edition is I thought about cases that I’ve worked on, and also how other people have used structured negotiation the last five years. So there’s a whole chapter, a new chapter, on new cases that people have used. And probably the biggest, kind of exciting for me thing to learn that there was a group of lawyers who, well, let me just back up for your audience that I’ve used structured negotiation for 25 years to resolve complex civil rights, disability claims without lawsuits. So we work with big companies on accessible technology, websites, healthcare issues, bringing people with disabilities together with big companies and working in collaboration. So I was very big in the first edition, I’m really pushing, you don’t need a lawsuit, you don’t need a lawsuit. Well, I learned from some of my readers that that’s true. I mean, that’s been my experience. But people have used the process feeling, you know, we need a lawsuit, but it doesn’t have to be so conflictual. So I have a couple new stories, especially in cases to improve jail and incarceration conditions for people with disabilities, where lawsuits were filed. But then the strategies in the book were brought into play, to use collaboration in the context of the lawsuit. That I think is very exciting, because there’s a lot of issues where people feel they need to have a lawsuit on file, either because of the relief they want, or the client demands or the whatever reason people feel more comfortable with the lawsuit. So I did some interviews with lawyers who used it once the lawsuit was filed, like for example, instruction negotiations. One of the best parts of it for me is that the expertise of clients can play a role. And in litigation everyone’s stuck in their role, you know. Plaintiffs are plaintiffs, defendants are defendants, experts are experts. But in the world of disability and technology, disabled people are very often experts in not just what they want, what they need, but what the solutions are. And structured negotiation allows for the kinds of conversation that brings out expertise. And these lawyers told me, yeah, we use that. We had joint experts, our clients were able to give input, even though we had a lawsuit on file. So that’s just one example of both what I learned and some of the new content in the book.
Yeah, I think that’s really powerful. Because oftentimes, in litigation, you will see where harmed parties are kind of just names on paper, and you have expert witnesses come in to either supplant or undermine the perspective of one of the parties in a lawsuit. And having recognition that the clients themselves can provide substantive knowledge and inform how an agreement, a cooperative agreement is reached, I think is really powerful. And you’re doing all of this still in the context of litigation, but there’s still a recognition between all parties that we’re going to provide for and recognize the experiences and the expertise of the parties involved in a case. Even though it’s still litigation, I think that’s a pretty important and valuable deviation from traditional litigation.
Oh, definitely. And these lawyers in the stories, they they called it structure negotiation. I refer to it as like, an oasis in the middle of a lawsuit, you know. Because one of the things that we do is, when we start since, when you’re not you’re doing a lawsuit, what are the rules gonna be? So we have ground rules that the parties negotiate together. So these lawyers negotiated ground rules, even though the lawsuit was filed on how they were going to handle the negotiations within the lawsuit. So you know, it’s fun as an author to see people take what you write and do something that you didn’t expect with it.
Maybe the best thing that I learned is, I was asked to do a talk by a designer, young person in his 20s. And this was like a year ago, and I was busy, I didn’t really want to do it, but he was so enthusiastic about the book that I just had, I had to say yes. So he introduced me, it was a talk of designers working in the government space. And he said, Lainey, his book changed how I work. Now, this guy wasn’t a lawyer, he didn’t have a legal claim. And so afterwards, I asked him, like, what did you mean by that, and he sent me this big long thing that actually I put in the book, the second edition, because I liked it so much. And it was all about how just reading the book gave him kind of a confidence not to be so combative, and not to be so . . . . I’ll just read your light of it, because I really thought it was so beautiful. He goes, “Because before reading the book, I felt the only way to get a point across to leadership was to focus on winning by means of individual merit, as opposed to collaboration. That ultimately shaped the language I use and it also made me miserable. Reading your book, change that.” And he goes on to say, “I didn’t feel I had to put people on the defensive, I could use positive language. The difference is incredible, less drama. I don’t go to sleep every night thinking about arguments I’ll have to make in battle tomorrow, things like that.” And so that made me feel like wow, and then there’s a couple other examples from disability advocates who valued the strategies in the book for their own work outside the legal system. So that, you know, I have some stories like that. And then I also tried to place it in the context of the last five years, which, you know, the pandemic and the Trump administration. Um I wrote a little bit about Black Lives Matter and how that made me think about some of the intersections that impact collaboration around race. So I tried to bring it into the present, and share some more stories and, circling back to what you said, kind of providing the optimism that I’m not here to say this is the end all be all for every kind of dispute. But it’s really good to be able to think more broadly about tools that we all have.
Yeah, yeah. And I really love that. And this is actually something I shared your book with one of my peers at RSI — at Resolution Systems Institute — and one thing that they mentioned is how what you’re writing about isn’t just for lawyers. It applies equally outside of the legal context. So when you were writing your book initially in 2016, the first edition, did you expect that people would be interpreting some of the guidance you’re giving outside of a legal context?
Not really, to be honest with you. I mean, first of all, the American Bar Association published the book, and I had a wonderful mentor, Danny Bowling, who helped me with the book and shape it and frame it. And it was really shaped and framed for lawyers. But, you know, the last chapter of the book is about what I call the structured negotiation mindset, where all these issues of empathy and patience come in. And another thing that happened in last five years, I did a lot of talks and trainings about this process. And in doing those, it became clearer and clearer to me that that’s really the ticket. The last chapter really probably should have been the first chapter. Because if you don’t have the right mindset, you cannot do this work. I’m not saying you have to it has to be your personality, it has to be innate. No. But it has to be something that you’re willing to learn and practice. And I think that is why the book has resonance for non lawyers, because those issues apply. Anytime you’re trying to get anything done. Anytime you go into a meeting, being able to listen. And, you know, I write a lot about fear. Because the one good thing about writing a book and looking over a 25 year portion of my career, is you see themes that you don’t necessarily see as they’re happening. And one was, people are afraid of things, many things. And that prevents agreements from being reached, and that causes claims to happen. And people have fears and they want those fears understood. Even as an advocate, we can say that fear makes no sense to me. Like for example, I worked on prescription labels that talk for blind people. And originally, some of the pharmacists were very afraid to have talking labels because they thought maybe the label would be misunderstood when the blind person listened to it. Now we of course, thought was ridiculous, because without talking labels, you’re giving someone a blank piece of paper. But it was a true fear. I came to believe it was a true fear of the pharmacists. And the only way to break down that fear is relationship and having pharmacists meet disabled people who were stuck wrapping rubber bands around prescriptions and keeping them in different places to keep them straight. So all those kinds of breaking down fears and listening, that applies to a lot more than conflict resolution.
So beautiful. I’m thinking of this book by Michio Kaku, who was I believe he’s an astrophysicist. It’s called The Future of the Mind. And Michio Kaku is actually one of my favorite authors in the science world. And he goes into the neuroscience of the brain. And when fear is triggered, the same neurological processes that are associated with listening are reduced. So when there’s this trigger for fear, it’s more difficult neurologically for people to try to listen, or at least to calm their nerves down in order to be like in a listening state. And so sometimes I think, and this maybe is for me, because fear is very widespread. And it informs decision making, it informs politics and informs so many different aspects of our lives. And when we kind of focus on the root cause of whatever is triggering that fear, I think that allows for the decrease of fear. Just talking it through thinking it through, asking why getting to the core of what’s causing that fear, can allow for more calm to come into the mind. And once that calm arrives, I think it’s really easy — or I shouldn’t say it’s really easy — it’s more possible to listen without concern for what’s my counterpart will be saying to me or that they would respond in a negative way. It’s really just calming down and doing what’s best to engage with curiosity really patience, and and listen openly. And in the quote you read off earlier around gaining the confidence not to be so combative, I find to be so beautiful. Because one, it’s an anecdote from someone who has learned from you essentially the benefits of doing that. But also illustrates that it’s possible, right? Like, when we have the litigators mindset of conflict, it’s easy to create that as a habit and think that that is the norm that we have to operate in. But the anecdote that you just shared from one of your readers illustrates, it’s just a habit. Being conflict-oriented is just a habit. And it can be broken so that you can be confident in not being combatative and being confident in being open and receptive to even what people who could be adversarial to you are saying. I think that’s a really beautiful quote, These are skills that we can work on.
Yeah, I mean, what you just said is, in my experience, that when you give people the opportunity to behave in a different way, most people want it, you know. Being in conflict is not that healthy.
And I know so many lawyers, you’re like, Oh, I can’t wait to retire. I just can’t do this. It’s like I was just on vacation. We’re sitting like, at a bar at a beach. And this lawyers like, Oh, thank God, I got out of the profession. Because year after year of having to put on that armor. One of the things that was so great about doing the talks between the first and second edition was people came up to me and said, this really speaks to who I am. Thanks for putting a name to it.
Structured negotiation is one strand of the integrative law movement.
And people are doing this in in all fields. And people want to know they’re not just some outlier who does didn’t get the memo in law school. But oh, yeah, this is, you know, another way to do it, and it works.
[Laughs] So I also wanted to, you mentioned earlier around some of the folks and clients you’ve worked with have been focused on providing accessible technology for people with disabilities. And I actually wanted to zoom in on that, because this podcast is kind of the convergence of technology and how it’s informing legal systems. And maybe from your experience, because you talk about how technology is either complicating or benefiting or both, opportunities for people accessing new systems when they have disabilities.
Well, let’s start with podcasts. Yes. So my work has been I say, at the intersection of technology and disability in dispute resolution. And I think the pandemic has taught us all the importance of making sure we can all use the technology available to us. So in podcasts, for example, podcasts are great for people who can hear, but if you can’t hear, you can’t get access to the podcast unless there is a transcript.
So on that note, I just want to take a quick break. And given immense shout out to my colleague and friend, Tracy Blanchard, for all the work she does in creating transcripts for Convergence episodes. Transcripts to my episode can be found on the section of the HNMCP website that is devoted to this podcast. Alright, let’s get back into it.
And so to make sure podcasts are accessible, there needs to be a transcript, which is not a difficult thing in at all to do. There are actually starting to be, there’s lawsuit, in fact, against a big podcast provider, because the disability community more and more is saying this is all possible. This is all possible. One of the problems we have in the space right now is that people are all caught up in shiny solutions, I call them, AI solutions to accessibility. And there’s a been a lot of venture money going to what they call overlays. And I invite your listeners, your readers to look at the overlaystatement.com [actual site URL is https://overlayfactsheet.com/], which is a statement about these tools that don’t solve problems for disabled people, but in fact, create additional problems. So I think the problem again, you and I both optimist, that’s why we’re having so much fun and this conversation. It’s not difficult to make things accessible. But again, it’s kind of like mindset. You have to want to do it. You have to put the money behind to do it. And I think there’s great promise and potential and I believe it’s going to keep getting better and better.
I really like that example because podcasts are something where people can learn so much. Books or something where people can learn so much. And eBooks are something where people can learn so much. And it, these new avenues for communicating, collaborating, opens up new possibilities, but the excitement, or the shiny new technologies as you describe them, because they’re so shiny, they can lead to this excitement, and people all of a sudden are making steps while forgetting the implications of those steps. And situating, that and people being able to access the content is really important as as new technologies are kind of being incorporated into old systems. I will share that I’m proud to share that, uh, that that we produce transcripts for every podcast we produce. And, you know, I’m immensely grateful. Tracy Blanchard has been really helping me with that. And sometimes, in the podcasting world, there can be just so much excitement and opportunism to publish plenty of content without really appreciating people who are being excluded from accessing though that content. So what you shared is really powerful and I think it illustrates how technology can be both opening in terms of providing access, and it can also be exclusionary, in terms of limiting people who can access the same amount of content.
Yeah, I do a lot of talks on digital inclusion as a human right.
And I have, exactly what you just said, I have one slide that just has two pictures. One is a locked door and one is an open door. Because that’s what it’s about. And I think once we start, and again, what the law can do to issues in the space. We have a lot of lawsuits, we have some unethical players. And people start thinking about accessibility as some legal requirement, instead of putting people front and center, which a dispute resolution process like structured negotiation can do. You forget what it’s about. And it just becomes a checklist or it becomes nothing. Whereas, and this is why it’s so important to have disabled people involved in creating technology. And it’s very . . .
. . . it’s very exciting that Josh Miele, who is a friend of mine, and a blind inventor, who works for Amazon, just got a MacArthur Genius Award. And he is, you know the expression couldn’t happen to a nicer person? This is what I want to say about this award. And I was talking to Josh, and it’s, of course, a recognition of all the work that he has done on creating technology that works for blind people like himself. But it’s also a real acknowledgement of the field of the community, of the importance of designing and developing for people with disabilities. And the leadership companies like Microsoft, many others, they understand. They have an expression, “design for one build for all.” That knowing that you want to incorporate everyone, including people with disabilities, is a real innovator. And tying it back to dispute resolution, when you have a less formal structure, you can really kind of play on some of those ideas, and not be limited in what relief is specifically required by the specific clients, but think bigger about it.
Yeah, I completely agree. And this is why I think the system design mindset is so important. And often times it’s easy for people outside of this space to just focus on the majority and say, okay, we just, like those are the primary folks, the majority, whatever that is. But when we appreciate that making things more accessible doesn’t, it doesn’t conflict with the majority in any way, it just allows more people to access that same content, it can be pretty transformative. And obviously, with system design thinking we want to take all stakeholders into account, not just the majority of stakeholders. And you know, with online dispute resolution, this is something that I did a lot of thinking about. We are providing new avenues for people to access the digital courthouse, and at the same time, the key stakeholders are everyone who is trying to have their day in court. [Laughs] Right? It’s not just The parents who doesn’t want to drive to court, it’s everyone. Everyone needs to access the court systems and have access to justice, basically. And making sure that all those voices are represented is really critical. So when you mentioned the accessibility to technology being a right, a fundamental right, when it comes to disability rights, I just think that’s really something that’s important.
Yeah. And especially the access to justice issues, and the online dispute resolution issues. I have written a piece a while ago on some of those issues. And, you know, it’s not just access to the court by people who have the claims. It’s, is the arbitrator deaf? Is the mediator blind? What about the admin who’s setting up the dashboard, and this is, this is why the relationship thing is so important, because when you know people with disabilities, and you know them from all aspects of life, you realize, and this is why we say, hiring disabled people is a key component to having accessible technology. Because when the person in the next cubicle over, or the next zoom window over, can’t hear, you’re a lot less likely to put out a video without captions.
It’s like anything else. And back to the fear conversation, people are afraid of disability, they think they don’t know what to do, and so they don’t do anything. So it’s all related and just agree with you on, it’s not a zero sum. So if you make things accessible, people are always saying that, Oh, I really like your website. It’s so easy to get around. I’m like, yeah, my website is LFlegal.com. It’s designed to be accessible. And we have a slogan, essential for some, useful for all. And that’s because when things are accessible, they’re easier for everybody to use. I already told you I was 65, because you asked me how I felt when I was 14, so I can say that some people say in accessibility, we need to design for our future selves. Because at some point, we’re all going to need all this accessibility.
Some of us sooner than others.
Yeah. What better way to promote empathy? Yeah. So we’ve talked about a bit about online dispute resolution. And we’ve spoken a bit about disability rights. And I wanted to focus in on the pandemic as it relates to those two pieces. So I was just thinking about this the other day, when I when I came back from this wedding in San Francisco, I was thinking about how, when the pandemic started it was more about, you know, just making it through. It will come to an end soon enough. And then at some point, I think there’s just been a collective experience of it’s more about managing the pandemic, rather than like, waiting it out, because of the duration of things. So we’re now many months into the pandemic. What, 20 plus months or so into the pandemic? And my question is, in your work, how has the pandemic impacted and influenced your field with disability rights?
Well, first of all, it’s challenging just as a health issue, of course, for people with disabilities, many people with disabilities. It has driven home the point that first of all people can work remotely and be effective. And remote work is something that people with disabilities, many, have wanted, needed and asked for for many years and been told, oh, that’s not something we can do. Well, now we know it is. So it will be very interesting to see as we go back, whether people who need remote work are still going to be able to hold on to it. The technology side has really emphasize the importance of accessibility, especially around just COVID information. So just a couple weeks ago, New York, the US attorney in New York did a settlement with five different New York agencies around making sure vaccination sites are accessible. And COVID information and all those sorts of things that it brings up — I don’t think we’ve mentioned that accessibility is such an essential component of privacy. And privacy is such an essential component about accessibility. And health is a place we all understand we have a right to our confidential health information, but if a website of a health care provider hasn’t been designed with accessibility, the disabled person has to ask for help getting information. So I think the pandemic has kind of shone a light on the need for access, both for employees and for the general public. In my, in my second edition I did, like I said, I tried to think about some of the themes that have [??] the realities, the last five years, of course, pandemics won and I was thinking that a dispute resolution process, it’s flexible, like structured negotiation, is very good for a pandemic. Because, first of all, most of what I’ve always done has been over the telephone. Easily switchable, over to online meetings, and as conferencing platforms and meeting platforms get to be more accessible, like Zoom, like Teams, it’s a very good way to build the relationships that have been essential to the process. So for example, I’ve had meetings during the pandemic with some of my blind clients who can share their screens and show web developer, here’s what happens when I’m on your site. And the developers, they love that kind of information. Not just the developers, the policy makers and designers, and they’re seeing it firsthand. And it’s a lot less expensive than bringing everybody together in a room. So that’s been, that’s been another advantage in terms of the process.
And a lot of what you just shared kind of relates to something you mentioned earlier about the importance of the relationships. And I find it beautiful, actually, because I’ve been doing this podcast since April, and basically in every episode, something related to trust has come back. And the formulations might be different, but the root of it is when engaging with multi-stakeholder, somewhat complex systems, that trust and the relationship between those stakeholders becomes way more important. And what you’re highlighting now is when things can be potentially exclusionary, then the relationships are even more vital to a fruitful interaction with all the stakeholders. I find that really interesting. And I guess going back to the impact of the pandemic, I know you’ve you’ve had some conversations with folks about this. Would you say that the work-from-home setting will be normalized post-pandemic and will be more accepted post-pandemic for communities with with disabilities?
I’d like to say yes. I know there is concern in the disability community that when people are required are encouraged to go back to work, the value to disabled people of being able to work remotely will be forgotten. And like I said, I mean, it really does come back to optimism, to trust. I mean, I have to trust in, you know, I do some work with a nonprofit called Disability:In, which is a business-to-business organization of fortune 1000 companies committed to disability inclusion. And so I’ve really gotten to see firsthand that, I’m not saying everything’s perfect, but when companies have employees that they see value of, value from, they’re gonna want to keep them. And if keeping them means more remote work, then I think that’s going to happen. I think this is a long haul thing. This is not, oh, the pandemic will be over next month. As we all know. Just just a second what you said about trust, also critical. I had a quote in my first edition from one of my counterpart lawyers or, you know, would be defense lawyers, and she gave me a quote, structured negotiations is a better way to do it. It’s so clear, blah blah blah. And then a week later, she called me up and she goes, “I need to change my quote.” And I said, “What’s up?” She goes, “I need to add when all parties are trustworthy,” because if people aren’t trustworthy, this process doesn’t work. And it builds trust, and it needs a foundation of trust. It’s kinda like you gotta have trust right from the start.
Yeah, and this is something that with the [Harvard] Law School with the Negotiation Workshop, something we teach to our students is, there is litigation, and litigation is great when you don’t trust your counterpart. You can just walk in, you have your counsel, they have their counsel, they say their arguments, maybe they they do their best to represent the truth of the matter. But still, there is reduced trust between the core parties there. And despite all of that, there’s a lot of opportunities that are being missed. There are a lot of value-added factors to an agreement that are being missed when there is no trust and once that trust is there, the parties can just meet with one another and kind of brainstorm cooperatively and collaboratively, and create so much more value. As the source of the quote mentioned, there has to be that trust for value to be created beyond a courthouse, beyond litigation.
Yeah, I love speaking with people like yourself, because I didn’t come from any sort of scholarly negotiations base. I just kind of fell into it and it worked, so I kept doing it. And it wasn’t until I wrote the book that I realized all these themes, like what you’re talking about, and then it’s so validating to hear that these are ideas that are accepted and taught. And I don’t know if you know, the book Soft Skills for the Effective Lawyer.
I do, yes.
Yeah, that book came out after mine. I write about that in the second edition, because it came out after mine and I met with the author. He’s from the Bay Area, Randy Kiser. And we just had such a great talk. And part of it was this thing I just said to you, but he’s done all these studies. He’s an academic, he’s done tons of studies that show what I actually experienced. That being nice to people matters. Or having empathy, building trust, all these things, that . . . it’s just a way that the academic and the scholarly and the practical just really come together. So I hope it gives encouragement to students in the next generation that this is really a legitimate way to be in the legal profession.
What excites me as you’re sharing that, is what are the implications of all this if the next generation of lawyers are all thinking about these skills: empathy, the value of listening. When when they’re thinking, patience, kindness, when they’re thinking about all of these skills, and it is at the core of how they engage with being a lawyer, I get excited about how differently the legal profession will operate, like how better it will be, let me just say that. How better it will be when for both disputants, better for all parties that are involved in the law, right? There’s a great law review article that actually talks about how defense counsel and defendants often experience a schism. Because their counsel can be just really, really adversarial and maybe not willing to even listen to their own needs, the defendants own needs. But it is used to kind of this process, the streamlining of the process. And so there can be less of those soft skills in the representation. And I get excited about defendants having counsel that are incredibly empathetic, incredibly patient, incredibly kind. And to me, I just think that the legal profession would be in a much better situation with those skills as core skills of being a lawyer.
I agree with you. I tell that story in the second edition that happened, where I was working with a big firm lawyer, and I knew him for a long time, and we had a good relationship, but something happened and he got mad, and he started yelling on this phone call. And it doesn’t usually happen in structured negotiation, you know. And when he was all done, he said, Sorry for being bad Mike, you know. And then he got back to the collaborative self of his. And, you know, there was a ABA study that came out that I have in the second edition about lawyer well-being, which I so agree with you, translates into effective lawyering for clients. And I think collaborative skills lead to well-being all around. So I share your excitement with how the profession can change. And, you know, along the last five years, I’ve met a lot of really committed law professors who are trying to do law different, you know, #makelawbetter. And that I think I can just contribute one little drop to that movement, I’ll be happy because I do think it’s like you said, it will make things a lot better.
And I am in full support of that hashtag #makelawbetter. So I have one final question for you. And this is, this is the ultimate question, the ultimate question here.
[Laughs] So my final question is what you believe about the future, since we’ve already been talking about the future of it, what do you think about the future of technology and disability rights or technology, disability rights, and dispute resolution, that very few people in your field believe.
[Pause] I’m pausing because I think a lot of people believe, I mean, there is a global community of digital accessibility advocates, disabled people. I mean, that’s one of the things I love most about the work I do is sometimes I wake up in the morning, and there’s an email from someone in France, like, how can we get collaboration over here? And my book is being translated into Spanish.
I know, I’m so excited about that. By the Association of collaborative lawyers in Basque country. I don’t feel like I’m really alone in my ideas, either in digital inclusion, or in the value of collaboration, I have to be honest with you. Maybe not a good, a good answer to the question.
But I feel that the community, both those communities, which overlap in me personally and in others, are just so life-giving and enriching to me that I could never think I’m the only person who thinks like that. But I’ll tell you one thing, sometimes when I’m in a conversation with traditional civil rights, or disability rights lawyers who are passionate and excellent at the litigation system, that’s the only context in which I feel, “I’m an outlier here.” And yeah, that is kind of the only place where I feel. Because a lot of people feel oh, I couldn’t do that. I don’t have your personality, whatever. And I’m like, It’s not personality, it’s skills. It’s learnings. I have hope I have optimism. And, for example, I didn’t know you before this podcast and I feel completely connected with you. We have shared values. So why would I ever say that nobody else makes like I think,
Yeah, yeah. Well, I think that is just the best way to end the conversation, on the note of optimism, and especially that it’s a global movement, that this optimism and the skills that you are sharing with the world, that it is global. It’s not just in the Bay Area, [laughs] where people are beginning to recognize the importance of these skills. It’s, it’s everyone who’s reading your book. Everyone who’s reading your book in Spanish too. Their learning and seeing just how valuable these skills can be, the mindset can be for resolving conflict. So with that, I just wanted to thank you so much. I, I’ve been, I mentioned before the podcast how I’ve been immersed in your ideas and your work for quite some time now and it’s been just such a pleasure getting to chat with you now.
Well, I feel completely the same way. Thank you so much. It’s been really fun and I learned a lot talking with you and I hope this is the beginning of many more.