Pre-Dispute And Pre-Escalation Processes To Prevent Disputes: A Brief Introduction

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 favours 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.

Here is a list of some typical pre-dispute and pre-escalation processes:

  • Realistic allocation of risks, the practice of assigning each risk to the party who is best able to manage, control or insure against the risk.
  • Providing incentives to encourage cooperation, to encourage parties to act cooperatively and focus on achieving legitimate joint goals.
  • Identifying potential causes of disputes, so the parties can select appropriate processes for preventing, controlling and de-escalating the development of disputes.
  • Partnering, a team-building effort to establish cooperative working relationships.
  • Direct negotiations and step negotiations, whereby the parties themselves deal directly with each other to solve problems.
  • Ombuds, an individual appointed to investigate complaints by employees, clients or constituents, independently and impartially.
  • Standing neutrals and dispute review boards: A jointly-appointed trusted neutral person or group of individuals, selected by the parties to assist them with problems throughout their relationship, who can, if necessary, achieve a ‘real time’ resolution of any problems or disputes that occur.

Categories of 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; and 2. dispute de-escalation, control, and ‘real time’ resolution techniques to prevent disputes.

Prevention and cooperation techniques that help to avoid problems and disputes.

Realistic Allocation of Risks

Realistic allocation of risks is the practice of balancing the obligations of parties to a relationship by assigning each risk to the party who is best able to manage, control or insure against the risk. If a party to a relationship is saddled with a risk that it cannot handle, this creates resentment and adversarial relationships, and sows the seeds of countless potential disputes. Therefore many problems can be avoided by following this practice.

Providing Incentives to Encourage Cooperation

The practice of providing incentives to encourage cooperation among parties to a relationshi