Three Articles that Explore Pre-dispute Techniques in Depth

Now that the basic principles of the dispute prevention and resolution field have been described, it’s useful to flesh out more details about the art and practice of using prevention techniques to create and strengthen business relationships.

Three articles linked below provide much food for thought:

First, “Thinking Ahead,” a chapter from the “Negotiator’s Desk Reference,” explores the new “anticipatory/preventive/proactive concept” which provides a philosophical frame for a different way of thinking about conflict in advance, which it calls “a new Anticipation and Prevention Movement.”  It urges dispute professionals and business advisors to adapt their skills to this new movement, and provides a “flow chart” to illustrate the differences between this new way of thinking and currently-typical conflict handling practices.  The article also contains a list of some of the best research and writing in the prevention field. 

Next is “Pre-dispute and Pre-escalation Techniques to Improve New Business Relationships,” a chapter from the recent ABA book “Negotiation Essentials for Lawyers,” written especially for busy lawyers. It summarizes the lessons from the “Thinking Ahead” chapter, and makes an additional point addressed specifically to the transactional lawyers who are called on to advise on and document new business relationships:

It noted that since ADR processes have now moved “upstream” from traditional “resolution” to the modern “prevention” of disputes, the role of the transactional lawyer who is involved in advising and documenting business deals and relational contracts has been vastly expanded. 

Among other things, it makes the point that since dispute prevention techniques have now been developed to the point where they should by now be a part of the tool kit of all competent transactional lawyers, the failure of such a lawyer to advise the client about the availability of these techniques could amount to a breach of the lawyer’s duty to the client. 

That concept was enunciated by the Georgia Supreme Court in the late 1980s, at the dawn of the ADR era, in an Ethical Standard (EC 7-5), incorporated into the Georgia Bar’s  Rules of Professional Conduct, which read in part:
For lawyers involved in transactions and counseling: ”A lawyer as advisor has a duty to advise the client as to various forms of dispute resolution.”

Today’s transactional lawyers can now be expected to put to full use the pre-dispute and pre-escalation techniques that are articulated in these articles. 

The last of these three articles, “Why Businesses Should Use Dispute Prevention and De-escalation Clauses in Their Agreements,” reminds us that every relationship carries with it the potential for disputes, which can occur at any time, even in the best of families and businesses. It makes the point that when parties are first entering into a business relationship they have a unique opportunity to exercise control over future problems and disputes by including prevention clauses in their agreements. 

This third article was first written in 1995 as the Introductory chapter to the Manual for Using Private Dispute Resolution Clauses in Business Disputes published by the law firm of Sutherland, Asbill & Brennan LLP (now Eversheds Sutherland LLP).  Further material excerpted from that Manual will appear in the next Section of this website, below. 

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