party discussion. A party may be reluctant to highlight potential conflict, but the facilitator’s job is to make sure that folks do not turn their heads for too long. What is the role of a relationship facilitator when discussing disagreements? The role is similar to mediation: to find an agreement. In prevention, the process is more of solving a mutual problem. The facilitator may help set up a process, e.g. leading the parties to brainstorm and surface all shared objectives and all possible solutions, then methodically discussing each solution. The facilitator may offer solutions of their own. As in mediation, the facilitator can help ensure each party hears what the other is communicating. It is important to emphasise that the relationship facilitator is not a decisionmaker. One colleague interviewed several general counsels about using dispute prevention, and a common response was “I am not turning over our issues to a third party.” That is right — the parties make the decisions. What skills are needed for dispute prevention? Prevention really is about problem-solving and finding solutions. Creativity, openness, excellent communication — the skills of a good mediator — are important in dispute prevention. Familiarity with the subject of the dispute is often essential to good problem-solving. To ask a cynical question, why would any firm or lawyer with a strong reputation in litigation ever encourage dispute prevention? Some of the biggest proponents of 74 LAWYERMONTHLY SEPTEMBER 2022 Many lawyers in various fields have dispute prevention as part of their ongoing practices, whether they call it that or not. prevention I know are big law litigation partners who see first-hand the waste of time, money and energy in litigation rather than in problem-solving. I have written up some of our discussions in an article on my website. These advocates recognise that the best interest of the client is often to find a different approach to work on solutions rather than just wage battle, while staying ready for battle when needed. One of my former law partners — an outstanding litigator — did just that. A CEO had called that litigator indicating that he had gotten crosswise with his investors and his board. That litigator’s advice was: “Do not hire somebody like me at this point; call Deborah or someone with her skills” to explore solutions. That CEO never called, and did not retain the litigator, but I hope he explored solutions. That CEO example, and frankly some of the dispute prevention work you describe, sound like a first cousin of ‘early mediation’ prior to litigation being filed. What can be done to make early mediation work? Prevention can occur one step earlier than early mediation, before the claims are well-outlined in either party’s head. As for success in both, the lack of information may be a challenge. Fear of the unknown is a reasonable caution in any significant decision but can overshadow solutions. Whether in prevention or early mediation, counsel can help define the issues and encourage the parties to share information to optimize the chances of reaching an agreement. How can lawyers incorporate dispute prevention into their practice? Many lawyers in various fields have dispute prevention as part of their ongoing practices, whether they call it that or not. It is fundamentally an approach to design and use processes for identifying and engaging early with conflicts to find solutions rather than default to litigation or arbitration.
RkJQdWJsaXNoZXIy Mjk3Mzkz