We all recognise mediation as an established tool for dispute resolution. There Is more talk now about dispute prevention. Can you give us an overview of this? Many mediators and advocates recognise that by the time mediation occurs — with a lawsuit underway or as a last-ditch effort before filing — too often the lines have been drawn and parties are entrenched. Prevention recognises conflict (which is inevitable) at an earlier stage, before the parties are pitted against each other. Prevention is an early, conscious choice by parties (let’s say, parties to a long-term supply agreement or co-owners of a business) to identify and productively engage with disagreements as and when they arise. Each party is often more able to see the other’s point of view at this stage. What are the fundamental principles for dispute prevention? o The parties’ deep commitment to early identification of and engagement with conflict. The contract can include a nonbinding commitment to use reasonable efforts to avoid disputes. The provision is non-binding to protect the parties’ autonomy on finding solutions. o A relationship owner within each party committed to getting the value of the desired arrangement by avoiding disputes. The attitude of each principal and designated representative is key. o A process for identifying and surfacing conflicts as and when they arise, between designated individuals within each party, with a clear framework for discussing the issue. o The opportunity for a third-party neutral to facilitate the resolution of conflicts — a ‘relationship facilitator’. The relationship facilitator can be selected at the time of the agreement, contemplated in the contract to be selected later based on enumerated qualifications, or used outside a contract if needed. A big advantage to selecting at the time of the contract is eliminating one more issue on which the parties take differing views. It is also highly valuable to have an infrastructure within an organisation that recognises and rewards efforts of prevention. A Fresh Look at ADR: Preventing Disputes 72 LAWYERMONTHLY SEPTEMBER 2022 Mediation can be an effective tool for settling disputes out of court, but is often thwarted by parties who begin the process with entrenched grievances. Deborah Hylton, a highly experienced ADR specialist, presents an alternative option: dispute prevention. In this feature, she explains the premise of dispute prevention, what it aims to achieve and how a lawyer can adopt it as a new tool for assisting their clients. Expert Insight
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