Structured negotiation is a collaborative and solution-driven dispute resolution technique which is increasingly being used as an alternative to litigation. It typically involves inviting the defaulting service provider to the negotiation table and impressing upon them the benefits of complying with social welfare legislations. While its utility pervades sectors, structured negotiation has been most effective in settling disability rights cases in the United States, a development that one of us, Ms. Feingold, has played no small part in ensuring.
OPINION | A call for disability inclusion that must be heeded
Its success rate
So far, structured negotiation has been successful in addressing the issues relating to inaccessible automated teller machines, point of sale devices, pedestrian signals and Service provider websites. It has convinced Walmart, CVS and Caremark to create accessible prescription bottles for blind or low vision customers. It has also been able to drive institutional reform by facilitating strategies for creating more accessible voting machines and websites.
At the heart of this success lies the win-win situation which the methodology of structured negotiation presents. Defaulting service providers want to avoid the high costs and negative publicity associated with litigation, while complainants want a barrier-free participation in the marketplace, both of which can be achieved through structured negotiation. This is not to dilute the role of the law and legal advocacy in securing the protection of rights of marginalised populations. Indeed, a key factor upon which the success of structured negotiation depends is the creation of a strong body of disabled-friendly legal precedents that create a robust foundation for structured negotiation to take place. Once courts are able to create a blueprint for what accessibility and compliance with the law in a given sector looks like, structured negotiation emerges as a pathway for businesses to ensure that they are able to make their offerings accessible without having to go through the rigmarole of litigation and for users with disabilities to obtain a disabled-friendly offering without the cost and unpleasantness associated with litigation.
OPINION | India, disability inclusion and the power of ‘by’
India’s red tape
As it is, the increasing pendency, paperwork and red tape in Indian civil courts are already dissuading parties from using traditional dispute resolution methods. India’s flagship disability legislation, the Rights of Persons with Disabilities Act, 2016 provides that any non-compliance with its provisions may be reported to the Chief Commissioner for Persons with Disabilities (‘CCPD’). The CCPD then puts the defaulting service provider on notice, and may then either direct them to make their services accessible or impose penalties on them for non-compliance. While the creation of a designated body for handling cases on disability rights has been a positive measure, its actual impact on repairing accessibility barriers in the marketplace remains to be seen.
For instance, the CCPD recently directed PayTM, a digital payments application to make its mobile applications accessible for Persons with Disabilities. In complying with the order, the PayTM application ultimately became more inaccessible. This incident demonstrates that any attempt to make digital services accessible for persons with disabilities in real time requires constant vigilance and user inputs which can validate the efficacy of solutions.
This is where the potential of a Structured Negotiation technique can be utilised. On one hand, it can allow service providers such as PayTM to avoid the embarrassment of being labelled as non-compliant. It can also help them avoid hefty legal fees and prevent their officials from being tied up in paperwork before courts for days. On the other hand, it can enable Persons with Disabilities to take their concerns directly to the service providers and monitor the fixes as they get implemented.
Priority is key
However, at the same time, it is pertinent to note here that the success of any alternative dispute resolution model is directly proportional to the level of priority that such service providers are willing to afford to the struggles of persons with disabilities. Till the time such providers continue to feel that there are no real benefits of providing any services to persons with disabilities, any attempts to settle these claims amicably outside courts would be a tall order to achieve.
That said, as Helen Keller noted, “optimism is the faith that leads to achievement”. And so we submit that for India, the time to deploy structured negotiation in a big way has come. Businesses that refuse to join the bandwagon will be doing so at their own peril as they will be losing out on the enormous buying capacity that persons with disabilities possess, even keeping aside the question of legal compliance to one side. It is high time that businesses prioritised the needs of disabled users, and exhibiting openness to enter into a structured negotiation would be a powerful step in this direction.
Rahul Bajaj is Co-Founder, Mission Accessibility, Senior Associate Fellow (Disability rights), Vidhi Centre for Legal Policy and a practising lawyer. Lainey Feingold is an American lawyer, author and speaker. The views expressed are personal
