Lawyers as Preventers of Disputes: “The highest and best form of dispute resolution is the prevention of disputes”
Experience with the Design and Use of Dispute Prevention Systems
Jim has been a pioneer in his law practice and in his dispute resolution work in the use of strategies and systems for proactively anticipating, preventing, de-escalating, controlling and managing problems that might otherwise escalate into disputes. He has served as a counselor to businesses, governmental agencies and non-profit organizations on the design, drafting and implementation of such systems.
Early in his law practice in the construction industry Jim became a student of the many ways that the construction industry has invented to “keep the peace” on construction projects. During most of his career he has been active in efforts to advocate and improve upon those techniques throughout the business world.
Jim has long been a practitioner, participant and advocate of the use of Standing Neutrals on construction projects and in other business relationships, serving as a dispute review board member or single standing neutral on a number of railway, power plant, highway and hotel projects.
The following catalogue of some of his activities during the past 25 years provides an excellent outline of the history of the development of what might accurately be called “the next big step in dispute resolution,” namely the design and implementation of systems for the prevention, de-escalation, control and early resolution of disputes.
In 1987 at one of the earliest Construction Litigation Superconferences Jim presented a seminal paper which advocated a holistic approach to construction project organization and execution, urging the systematic use of a series of dispute prevention and control techniques, tailored to the needs of a specific project, designed to facilitate timely performance of a project (The principal testing ground for this approach was Jim’s employment as construction project trouble-shooter by the design team throughout the construction of the new Atlanta Airport – a project which was successfully completed in 1979, on time and under budget.)
In 1990 Jim was a principal speaker at an American Arbitration Association “Leadership Conference” where dispute resolution professionals compared experiences in various industries and businesses. Jim’s description of the construction industry’s “spectrum of dispute avoidance and resolution devices” prompted the Conference to discuss and propose that these techniques and systems be applied to the prevention of disputes in all areas of business activity
In 1990 and 1991 Jim served as Co-Chair of the CPR Committee on Prevention and Resolution of Construction Disputes, which undertook to identify and study all of the construction industry’s innovations in the field of preventing, controlling a managing disputes. The Committee’s work product was a seminal book which provided the first systematic analyses of these techniques and how they can be combined into systems. One of Jim’s contributions to that book was the chapter on standing neutrals.
In 1991 Jim was one of the creators of the “Dispute Resolution Stages and Steps” chart which graphically illustrates the process by which problems which are not immediately solved continue to escalate, resulting in increasing hostility, cost and time to achieve resolution, and prescribes appropriate tools for dealing with those problems through the escalating stages.
In 1991 Jim was a keynote speaker at the Annual Meeting of the Construction Industry Institute, the industry’s leading research and leadership forum, where he proposed that CII become a leader in engaging in research and implementation of the lessons contained in the CPR study.
From 1991 to 1993 Jim was a member of the Construction Industry Institute’s Dispute Prevention and Resolution Research Team, which developed more than a dozen instructional and practical products for the prevention and control of disputes, including the Disputes Potential Index, and which presented many programs at CII meetings on the design and implementation of systems for the prevention and resolution of disputes. (This Research Team received CPR’s Award for Outstanding Practical Achievement in Dispute Resolution in 1994.)
In 1991 Jim became a co-founder and Chair of the Dispute Avoidance and Resolution Task Force (DART) which undertook a three-year effort to promote more widespread use of systems for prevention, control and management of disputes throughout the construction industry.
In 1992 and 1993 Jim expanded his dispute prevention activities to industries and organizations outside the construction industry, presenting some early programs to business groups involved in taxation, insurance, antitrust and banking.
In 1994 Jim served as an advisor to the Internal Revenue Service on developing processes for controlling and resolving complicated Transfer Pricing disputes.
In his law practice, Jim advised various departments of his law firm on prevention techniques, authored a manual for his law firm on the prevention and early resolution of disputes, and helped to implement dispute prevention programs for clients.
His work over the years has included investigation, research, writing, teaching, speaking, and conducting seminars and workshops on all aspects of conflict anticipation and prevention in many different kinds of business relationships. Among these activities have been the following:
- Jim has lectured on systems for dispute prevention and resolution at Emory University Law School, Georgia State University Law School, Mercer University Law School, Clemson University, Princeton University, Virginia Polytechnic Institute, University of Colorado School of Engineering, Georgia Institute of Technology, and University of Texas School of Engineering. In 2002 he was the instructor of a graduate course in “Preventing and Resolving Construction Disputes” at Georgia Institute of Technology School of Architecture.
- In 2004, as chair of the dispute prevention and resolution committee of the National Academy of Construction he organized a major conference at the National Academy of Sciences on the subject of “Reducing Construction Costs: Best Practices in Preventing and Controlling Construction Disputes.”
On behalf of CII and the National Academy of Construction, Jim has helped to sponsor and direct empirical research into quantifying the relative costs of various methods of dispute resolution to provide data upon which business leaders can make intelligent choices of dispute prevention and resolution methods. (This research is described in “Dispute Resolution Transactional Cost Quantification: What Does Resolving a Dispute Really Cost?” in Tommelein, I.D. (Ed): Construction Research Congress 2005 – Broadening Perspectives. Proceedings of the American Society of Civil Engineers Construction Research Congress 2005. Authors: Gebken, R. J., Gibson, G.E. & Groton, J.P.)
Jim has periodically presented programs at CII meetings, and in 2006 and 2007 he taught CII Construction Leadership courses in dispute prevention systems at the McComb Graduate School of Business at the University of Texas.
In 2006 he conducted a dispute prevention workshop at the LexisNexis conference in Bejing, China “Applying Dispute Prevention and Early Resolution Approaches to Conducting Business out of China,” and presented a paper on the subject of “An Ounce of Prevention is Worth a Pound of Cure.”
In 2007 he presented another workshop and a paper on prevention of disputes at a conference in Turku, Finland.
(The foregoing two conferences in China and Finland were possibly the first forums held anywhere in the world outside of the construction industry which were convened for the purpose of preventing, as contrasted with resolving, disputes.)
Jim has participated as an active member of the International Association for Contract and Commercial Management (IACCM) in developing programs and writing articles and papers on how businesses can use dispute prevention methods in commercial contracts and transactions. He was co-author of a paper presented at the 2007 London conference of European, Middle Eastern and African members of IACCM, and he conducted a prevention workshop at the IACCM Americas Conference in 2008.
In 2009 Jim worked with the Construction Advisory Committee of the CPR Institute on the publication of three “construction prevention best practices” monographs on the subjects of Realistic Risk Allocation, Partnering, and Dispute Review Boards, describing how those techniques can be used in other businesses and industries (he was co-author of the Risk Allocation monograph).
From 2007 to 2009 he served on a CPR Institute exploratory committee to determine how CPR can best encourage its corporate members to adopt and use better dispute prevention techniques, and he was the principal author of that committee’s report, “Thinking Ahead: Moving from Reactive Dispute Resolution to Proactive Dispute Anticipation and Prevention”. He was also the principal author of the 2010 CPR Dispute Prevention Initiative and Practice Manual “Reducing Disputes through wise Prevention Practices.”
In 2010 he presented a training program for representatives of the Iraq Oil Ministry on “Structuring Contracts So As to Prevent Disputes from Escalating,” presented under the auspices of the U.S. Departments of State and Commerce and CPR.
In 2011 he was a contributor to the Toolkit for “Resolving Corporate Governance Disputes” published by the Global Corporate Governance Forum of the International Finance Corporation and the World Bank.
In 2014 he conducted a training program in Dubai, UAE, “Oil and Gas Contracts Negotiation and Dispute Management Excellence,” to oil and gas industry executives from Asia and the Middle East, under the auspices of the Quest MasterClass organization
Awards and Honors for Dispute Prevention Systems Work:
Jim has received the following awards and honors for his pioneering work in advocating the use of techniques and systems for preventing and controlling disputes:
Honorary Membership in the American Institute of Architects in 1985 for his work as “a true problem solver for the entire construction industry.”
Medal of Excellence from Engineering News-Record in 1993 for “significant construction industry achievement” in encouraging the use of dispute prevention and resolution processes in the industry.
Co-recipient of a 1994 award from CPR for “outstanding practical achievement in alternative dispute resolution” as a member of the CII Dispute Prevention and Resolution Research Team.
Election to membership in the National Academy of Construction in 2002 for “Leadership in developing Alternate Dispute Resolution Techniques for the Construction Industry.”
Presentations and Publications on Dispute Systems and the use of Standing Neutrals:
The titles of the following representative selection of papers, presentations and publications of which Jim been the author or major contributor trace the “upstream” evolution of dispute resolution during the past generation from Litigation to Arbitration, to Mediation and other consensual forms of ADR, and more recently to systems for the proactive prevention and de-escalation of disputes:
Latest Strategies Pertaining to Loss Control in a Litigious Environment. Construction Litigation Superconferences, 1987 and 1988.
Dispute Resolution Devices for the Construction Industry: A Spectrum of Dispute Avoidance and Resolution Devices, AAA Leadership Conference, Princeton, N.J. 1990, published in The PunchList, Vol. 13 Nos 3 and 4.
The Role of Jobsite Dispute Resolution in Improving the Chances for Success on a Construction Project, 13 Construction Lawyer 21, 1992 (with co-author William R. Wildman).
Dispute Review Boards: Backdoor Partnering, presented at the Construction Leadership Conference, 1993, and reprinted at 75 Contractor Magazine 22, 1993
Disputes Potential Index, CII Research Report SD-101 (1994) and CII
Special Publication 23-3 (1995) (Jim was a major contributor)
Sutherland, Asbill & Brennan Manual for Using Private Dispute Resolution Clauses in
Business Agreements, 1995.
The Newest in ADR Approaches: A Review of Some Innovative Techniques the Construction
Industry Has Developed That Are Transferable to Other Industries, Georgia Institute of
Continuing Legal Education, 1995.
New Techniques for Preventing, Controlling and Resolving Disputes, 1995 (briefing paper for clients)
ADR as a Part of Law Practice, Georgia Institute of Continuing Legal Education, 1995
Keeping the Peace: The Use of Early ADR Procedures, ABA Forum on the Construction Industry, 1996.
Contributor to Construction Dispute Review Board Manual, McGraw-Hill, 1996
Using ADR in Corporate and Banking Transactions, State Bar of Georgia Banking Law Section, 1996.
Preventive Lawyering, 1996. (briefing paper for a client’s legal department).
Contributor to Construction Dispute Review Board Manual, McGraw-Hill, 1996
The Evolution of Dispute Resolution: Lessons in Designing Systems for the Prevention, Control and Early Resolution of Disputes, SPIDR Annual Conference, 1997
The Progressive or ‘Stepped’ Approach to ADR: Designing Systems to Prevent, Control, and Resolve Disputes, in Construction Dispute Resolution Formbook, Wiley, 1997.
Why Transactional Lawyers Should Use Private Dispute Resolution Clauses in Business Agreements, 1998. (briefing paper for clients)
Jobsite Dispute Control Methods and the Continental Divide of Dispute Resolution, International Construction Law and Dispute Resolution Conference, Salzburg, Austria, Center for International Legal Studies, 1998.
Stop Construction Industry Disputes Before They Arise: Jobsite Dispute Control Methods, CONEXPO Conference, 1999
The Use of Dispute Management, Control and Early Resolution Techniques by Corporate and Transactional Lawyers, 1999. (briefing paper for clients)
ADR in the Corporate Setting: Ethical Issues in the Use of Dispute Management, Control, and Early Resolution Techniques by Corporate and Transactional Lawyers, Atlanta Bar Association, 1999.
Dispute Review Boards Here and Overseas, ABA Section of Dispute Resolution, 2001
Real Time Dispute Resolution Devices, Global Construction Superconference, London,2001
A Comparison of Dispute Review Boards and Adjudication, 18 International Construction Law Review 275, 2002 (with co-authors Robert A. Rubin and Bettina Quintas).
Chapters describing the development of the full range of prevention and de-escalation techniques in the following books: Alternative Dispute Resolution: The Litigator’s Handbook, ABA, 2000; American Arbitration: Principles and Practice, Practicing Law Institute, 2008; Construction Law, ABA Forum on the Construction Industry, 2008.
The Use of Dispute Management, Control and Early Resolution Techniques in International Business Transactions, International Dispute Resolution Conference, Salzburg, Austria, Center for International Legal Studies, 2002.
A New Frontier in Dispute Resolution: The ‘Up Front’ Prevention, Control and Early Resolution of Disputes, ABA Dispute Resolution Section Annual Meeting, 2004
The Construction Industry’s Guide to Dispute Avoidance and Resolution, American Arbitration Association, 2004. (Jim was a major contributor)
Forms I Use for Prevention and Resolution of Disputes, in Construction Project Formbook, Aspen, 2004
The “Up Front” Prevention, Control and Early Resolution of Disputes, published in Proceedings of the Corporate Contracting Capabilities Conference, Turku (Finland) University of Applied Sciences, 2007.
From Reaction to Proactive Action: Dispute Prevention Processes in Business Agreements, published in the Proceedings of the International Symposium on Contract and Commercial Management, London, International Association for Contract and Commercial Management, 2007 (co-authored with Helena Haapio).
“Zero Disputes? Collaboration Lessons Learned From the Construction Industry,” Contracting Excellence (International Association for Contract and Commercial Management) December, 2007.
“Converting the Construction Industry’s ‘Disputes Potential Index’ Into a ‘Success Potential Index’ For Any Kind of Business Relationship,” Contracting Excellence (International Association for Contract and Commercial Management), February, 2008.
Speaker on the subject of “Project Neutrals” at the ABA Forum on the Construction Industry Program on the New Consensus.DOCs, 2008
Preventive Practices: Lessons from the Construction Industry in Preventive Law and Problem Solving, Vandeplas Publishing, 2009.
The Standing Neutral: a ‘Real Time’ Resolution Procedure that also Can Prevent Disputes, Alternatives 181, International Institute for Conflict Prevention and Resolution, December 2009
“Real Time” Prevention and Resolution of Construction Disputes, Dispute Resolution Journal May-October 2010 p. 128.
How and Why the Standing Neutral Dispute Prevention and Resolution Technique Can Be Applied, Alternatives 180, International Institute for Conflict Prevention and Resolution, November 2011 (with co-author Kurt L. Dettman).
Contributor on the subject of Standing Neutrals to The Vested Outsourcing Manual, Kate Vitasek et al., Palgrave Macmillan 2011
A notable Standing Neutral assignment:
One of Jim’s particularly innovative Standing Neutral assignments was serving in the role of the “Development Arbitrator” on a hotel development project, part of a mixed-use real estate development with a construction cost of over $2 billion. The process that was designed for that project is a variation of the Standing Neutral/DRB process which included an initial fast-track mediation followed if necessary by immediate binding arbitration using a “baseball arbitration” technique, guaranteeing that no dispute would go unresolved for more than 30 days. Under the watchful eye of the Development Arbitrator, during the 30-month project duration the parties resolved every potential dispute by themselves without having to refer a single dispute to the Development Arbitrator, and the project was completed on time and within budget.
Further information on the developing field of proactively anticipating and preventing disputes can be found in the “Scrapbook” section of this web site.