Everything Old is New Again: Attorneys Negotiate Pre-Filing Settlements
(Everything Old is New Again from All That Jazz; my favorite line from this movie: [stand-up comedian): This chick, man [referring to Kubler-Ross] without the sole benefit of dying herself, has broken down the process of dying into five stages: anger, denial, bargaining, depression and acceptance. Sounds like a Jewish law firm. 'Good morning, Angerdenialbargainingdepressionacceptance!'. )
Meet Early, Settle Often is music to our ears here at the Settle It Now Negotiation Law Blog.
The "new idea" is called "structured negotiation" (a lot like a multi-part construction dispute mediation) and the big news is that lawyers are doing it for themselves.
Now I don't really like to talk about how we used to walk to work in three feet of snow (no compuers, no word processing, no faxes, restricted access to copy machines, no Lexis/Westlaw) but we really did negotiate our own settlements on a weekly basis without filing suit first.
No mediators. Look Ma! no hands.
As Ken Cloke says, "mediation is a profession in pursuit of its own suicide," i.e., we really do want you to have and use these skills to negotiate your own settlements. Really, we do.
So I'm pleased to give you a link this morning to a Law.com article, California Attorneys Meet Early, Settle Often. Excerpt below:
Linda Dardarian and Elaine "Lainey" Feingold are in the midst of a long winning streak in disability access cases -- and so are their opponents.
In eight years, the San Francisco Bay Area plaintiffs lawyers have settled more than two dozen disputes without filing suit or even bringing in a mediator. . .When Dardarian and Feingold send demand letters to organizations they claim are violating disability access laws, they offer to avoid litigation by sitting down with a small group of defense lawyers and technical experts and working out an agreement, a format known as structured negotiation. The letters generally mention the legal basis for a claim of attorney fees, as well, Dardarian said.
From square one, the plaintiffs lawyers' success depends on carefully balancing cooperation with the looming threat of litigation. . .
"A lot depends on the trust you have with people and the way in which they approach you," she said.
Stewart said she knew Dardarian and Feingold were "credible, capable" lawyers from previous dealings with the two. More importantly, though, their demand letter laid out their claims and their desire to find a resolution.
"How can you say, 'No, we won't talk to you?' It's stupid, in most circumstances," said Stewart, who turned over the dispute to Julia Friedlander, the MTA's general counsel, and Deputy City Attorney Christiane Hayashi.
