The publication of two recent Summaries of GPC voting patterns through the end of 2016 gives us the data to venture some preliminary observations about trends for the future of dispute resolution.
The voting so far on two critical Core Questions indicates somewhat surprising but consistent emerging preferences for cooperation and prevention processes, and for flexible, non-adjudicative rather than adjudicative processes.
Preventative vs adversarial
Session 4 at all GPC Conferences held so far addressed the general subject of “What Action Items Should Be Considered, and By Whom?” Core Question 4.5 (the last and arguably the most important Core Question of all) specifically asked “What innovations/trends are going to have the most significant influence on the future of dispute resolution?” The two top preferences were:
1. “Greater emphasis on collaborative instead of adversarial processes” (top choice of all categories except Parties); and
2. “Changes in corporate attitudes to conflict prevention” (top choice of Parties).
Session 3 at every conference addressed the subject of “How can dispute resolution be improved?” Core Question 3.2 specifically asked: “To improve the future of commercial dispute resolution, which [of 6] processes should be prioritized?” The three top preferences were:
1. “Pre-dispute or pre-escalation processes to prevent disputes” (unanimous top choice of all five categories of delegates);
2. “Combining adjudicative and non-adjudicative processes;” and 3.”Non-adjudicative dispute resolution methods.”
Expect the unexpected
Some of these voting results may seem surprising to most lawyers and even dispute resolution professionals – certainly ‘prevention’, ‘pre-escalation,’ and ‘pre-dispute’ are not mainstream dispute resolution topics – yet these results comport with such time-honored precepts as ‘an ounce of prevention is worth a pound of cure,’ ‘a stitch in time saves nine,’ and ‘blessed are the peacemakers’.
Preventive and pre-escalation processes frequently may be the most affordable, transparent, and inclusive methods for dealing with a broad variety of legal and business risks. The GPC voting results are surprising only in that these tools have been relatively neglected for many years. Their effectiveness and efficiency, however, are well established.
Promoting prevention practices
The challenge for the Global Pound Conference and for the dispute resolution world is that because of the limited conversation about prevention and de-escalation, few persons are trained in either their unique mentality or their mechanics.
This paucity of information may be reflected in the responses to a third question: Session 4 Question 2 (4.2), asks “What is the most effective way to improve parties’ understanding of their options resolving commercial disputes?”. The respondent groups strongly and uniformly called for “Education in business and/or law schools and the broader business community about adjudicative and non-adjudicative dispute resolution options”.
Fortunately, pre-dispute and pre-escalation resources are available to address the challenges from these voting preferences, and they offer opportunities to shape the future of dispute resolution while improving access to justice. One good start is to identify pre-dispute prevention and de-escalation methods as part of a progression or escalating sequence of dispute resolution alternatives.
Stages and steps
Each step is tailored to address potential and actual disputes in the context of a dispute resolution continuum, in which potential disputes, unless earlier resolved, continue to escalate in hostility, cost and time to achieve resolution. In a post published on the GPC Blog last August, Jim Groton offered a most helpful diagram of this process, a “Chart of Dispute Resolution Stages and Steps”. I re-post his diagram below, with his permission.
The escalation of hostility, cost, and time to achieve resolution as one moves toward greater formality and adversarial qualities point to the wisdom of adopting stronger uses of the first stages. Jim Groton’s previous article on pre-dispute and pre-escalation processes, provided a good summary of those first stages.
More comprehensive materials about the less familiar stages of dispute prevention and de-escalation can be found on the GPC website, including the CPR Conflict Prevention Initiative: Reducing Disputes through Wise Prevention Processes, and accompanying materials, entitled CPR Prevention Practice Materials.
Written by Thomas Barton.
Thomas Barton is a Professor of Law at California Western School of Law, where he has taught and written about a broad diversity of topics, including Preventive Law, ADR, Contracts, problem-solving, and designing legal systems. He has also published a book explaining the mentality and methods of prevention: Preventive Law and Problem Solving: Lawyering for the Future (Vandeplas, 2009), which is freely available at www.preventivelawyer.org.