As a commercial litigation law firm we know all too well that most disputes resolve by way of settlement. Usually, for such a settlement to occur there needs to be a well worded letter of demand (often followed by a Calderbank offer) typically coupled with actual legal proceedings. A fairly recent book called "Structured Negotiations" by Lainey Feingold challenges traditional assumptions about the need for legal proceedings to be filed and suggests there is another way that apparently has been successfully used for over 20 years.
Structured negotiation is one form of alternative dispute resolution that takes place without legal proceedings being on file. It aims to resolve disputes without the time, expense and loss of control typically associated with the court's processes. Structured Negotiation starts with an opening letter, that is different to the traditional letter of demand, that invites your counterpart to negotiate a grievance on certain terms set out in an agreement. As a form of dispute resolution the goal is to try and arrive at a collaborative solution, rather than force the other side into a defensive mode of thinking, with a view to ultimately enter into a binding resolution. To achieve that the opening letter is less confrontational than a letter of demand and it also seems to discourage the use of experts. The negotiation agreement lays out the rules pursuant to which the negotiation takes place and fixes a time by which the they are to be complete so there are incentives for both sides to work towards the end date. For anyone interested in learning about this form of dispute resolution please visit Lainley Feingold's website at http://www.lflegal.com/ which also has a link to her book called "Structured Negotiation: A Winning Alternative to Lawsuits" which you can then buy.
Whilst we often see a willingness on the part of our clients to negotiate rather than to simply litigate there are quite a few unanswered questions for us about how willing the other side would be to negotiate if legal proceedings had not been threatened or actually instituted. The utility of Structured Negotiations is certainly something worth exploring given that litigation is always expensive and often uncertain, and if there is another way it is certainly worth considering.
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