Proactive Pre-dispute and Pre-escalation Techniques to Strengthen Business Relationships

Jim Groton

Jim Groton is a retired partner of the law firm of Sutherland, Asbill & Brennan LLP, where he formerly led the Construction Practice and Dispute Prevention and Resolution practices of that firm. 

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JIM GROTON RECEIVES CPR’S INAUGURAL AWARD FOR LEADERSHIP IN DISPUTE PREVENTION.

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Allen Waxman Interviews Jim Groton

Waxman considers Jim Groton “the father of the modern Standing Neutral concept.” (FORBES MAGAZINE)

EXCERPT FROM FORBES ARTICLE

PROFESSIONAL HISTORY

AWARDS & HONORS

Two Minute History of Construction Law

In a playful tongue-in-cheek address in Biblical language to the American Bar Association’s Forum on the Construction Industry in 1994, Professor Thomas Stipanowich, a prominent construction industry and dispute resolution scholar, undertook to describe how the field of construction law had developed during the past generation, with humorous references to some of the lawyers who were principally involved in that history. 

Professor Stipanowich’s article  was originally published at 14 Constr. Law. 28 (Aug. 1994), and was reprinted in the Bruner and O’Connor Treatise on Construction Law, with bracketed notes added by the authors of the treatise that explain some of the names in the article that readers who are not intimately familiar with the construction industry might not recognize. 

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WEBSITE MISSION

The purpose of this website is to inform the business world about the use of pre-dispute and pre-escalation processes in business dealings, not only to prevent disputes but because they strengthen relationships.  In this website we collect the very best writing in this field, report on significant developments, and encourage further research and experimentation to advance the field.  

THE DEVELOPING FIELD OF PROACTIVE DISPUTE PREVENTION

Among the dozens of dispute resolution processes that exist today, there are a number of relatively new pre-dispute and pre-escalation processes that can be used to prevent disputes before they become so intractable that they have to be dealt with through traditional “resolution” processes.  These processes are most effective when instituted proactively, at or near the beginning of a relationship.

The philosophy behind these processes can be illustrated by the following expressions:  “It usually costs less to avoid getting into trouble than to pay for getting out of trouble” (Professor Lewis Brown, 1950).  “An ounce of prevention is worth a pound of cure,” “A stitch in time saves nine.”  “Fortune favors the prepared mind.”  “Fix the problem, not the blame.”  “Be prepared.” “be proactive, not reactive,”  “The highest and best form of dispute resolution is dispute prevention.”

These processes are all practical, common-sense practices and techniques, invented by users of dispute resolution services. They acknowledge that problems and unexpected events are likely to occur in any relationship, and they are based on such principles as mutual cooperation, collaboration, early attention to problems as soon as they develop, prompt action to deal with problems on a “real time” basis, avoidance of adversarial attitudes, reliance on pre-selected experts, participation in reaching solutions to problems and disputes, and direct party control over the outcome of a dispute.

Categories of pre-dispute and prevention processes:  

Pre-dispute and pre-escalation processes can be grouped under the following two broad categories: 

  1. Prevention and cooperation techniques that help to avoid problems and disputes. 
  2. Dispute de-escalation, control, and “real time” resolution techniques to prevent disputes. 
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Chart of Dispute Resolution Stages and Steps:

Today, because of the flexibility, adaptability and versatility of ADR, Users of dispute resolution processes have available to them a wide variety of techniques that can be used to prevent, control and resolve disputes. New techniques are constantly being developed to deal with the wide variety of potential disputes that can occur in any kind of relationship, and at any stage in the development or escalation of a problem or dispute.

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ARTICLES

A Forbes Magazine article on March 31, 2022 about Standing Neutrals contained the following tribute to Jim Groton:
"The Father of the Modern Standing Neutral Concept”

Waxman considers Jim Groton “the father of the modern Standing Neutral concept.” Groton, a retired partner of the global law firm Eversheds Sutherland, received CPR’s inaugural Outstanding Leadership in Dispute Prevention award earlier this month.

Groton – an expert in preventing disputes in the construction industry – has long advocated for conflict prevention. Jim began his career as a practicing lawyer during Atlanta’s building boom in the 1950s, 1960s and 1970s. Over the years, Groton evolved his career from being a trial lawyer, to a troubleshooter, to a behind-the scenes counselor, to problem solver, and ultimately to pioneering in the application of proactive techniques for preventing, controlling, de-escalating, and achieving the earliest possible resolution of disputes.

In a recent interview, Groton noted how he evolved his thinking from dispute resolution to dispute prevention. “The construction industry has historically had a reputation of being very litigious, and it’s common for construction projects to experience multiple disputes. As a construction lawyer, I have represented hundreds of clients in disputes. Long ago I became an early adopter of mediation and arbitration because they offered faster and less expensive ways to resolve disputes. But over the years, I realized that traditional mediation and arbitration are too slow for fast-moving modern business activities.”

Groton then learned that some very smart geotechnical engineers had invented ‘Dispute Review Boards’ for dealing with difficult construction project engineering issues. A Dispute Review Board is a panel of three experts who meet regularly with the parties involved in a construction project with a goal to help the parties resolve issues promptly. In 1991 Groton noted that the success of Dispute Review Boards proved that by providing a neutral perspective very early in the process you can prevent disputes, and suggested that the concept could be applied to any type of business relationship. He then adapted it by piloting the idea of using one single neutral with success.

Groton adds, “The Standing Neutral technique has turned out to be by far the best existing preventive approach I have seen. Embedding a neutral as part of contracting parties’ governance process emphasizes facilitating issue resolution while misalignments are small – well before there is a dispute. I came to find that embedding a Standing Neutral has almost ‘magic powers’ to keep disputes from happening.”

Since he retired from law practice in 2001, Groton has remained as active as ever and recently co-authored a white paper “Unpacking the Standing Neutral” with the goal to help organizations and individuals learn how to put a Standing Neutral in practice.

AWARDS & HONORS

Whitney North Seymour Sr. Arbitration Medal
Issued by American Arbitration Association · Jun 1983

For “Outstanding contributions to the responsible use of arbitration” (The American Arbitration Association’s highest award)

Honorary Membership
Issued by American Institute of Architects · Jun 1985

For service “as a true problem solver for the entire construction industry”

Award for Significant Practical Achievement in Dispute Resolution
Issued by CPR: The International Institute for Conflict Prevention and Resolution · Jan 1989

Award for Innovation as a co-recipient with participants in the First Texas-PULSE arbitration

Medal of Excellence
Issued by Engineering News-Record · Sept 1992

“For assuming a leadership role in the fight to reduce construction litigation”

Award for Outstanding Practical Achievement in Dispute Resolution
Issued by CPR: The International Institute for Conflict Prevention and Resolution · Jan 1994

Award for Innovation as a co-recipient with members of the Construction Industry Institute’s Prevention and Resolution Research Team

Election to Membership in the National Academy of Construction
Issued by National Academy of Construction · Jun 2002

“Leadership in developing Alternate Dispute Resolution techniques for the construction Industry”

Lifetime Achievement Award
Issued by Construction Lawyers Society of America · Sep 2019

A lifetime of service to the construction Industry

Inaugural Award for Outstanding Leadership in Dispute Prevention
Issued by International Institute for Conflict Prevention and Resolution · Mar 2022

Leadership in the development of dispute prevention techniques

Fellow of World Commerce and Contracting
Issued by World Commerce and Contracting · Apr 2022

“Selected into a global community of professional fellows, recognized for continued contributions to the development of Contract and Commercial Management, as well as outstanding personal support of WorldCC and its vision of driving improvement in the quality and integrity of trading relationships”