We have just concluded our Business Breakfast meeting.

Is the turbine manufacturer delaying delivery?
Is a landowner unlawfully blocking the installation of your cable route?
Is your BoP contractor claiming payment for additional works?
Are you disputing cost allocation with a consortium partner on a PV project?
Is your EPC subcontractor seeking reimbursement of indirect costs?

A dispute does not necessarily have to end up in court or arbitration. But you should always be prepared for that possibility.

During our recent Business Breakfast, we discussed with representatives from various industries, including renewable energy and real estate, how to avoid disputes and how to prepare effectively when they become unavoidable.

Using real-life examples of disputes and project challenges, we presented Anti-Litigation and Pre-Litigation Strategies—approaches designed to help organizations prevent disputes whenever possible while also preparing for those that cannot be avoided, in line with the ancient Roman principle: “If you want peace, prepare for war.”

It is time to replace the popular myth that “a strong organization never backs down” with a more pragmatic approach: “a strong organization knows when to fight and when to close the matter efficiently.”

Effective dispute prevention and dispute preparedness require a comprehensive approach. This includes not only “hard” legal measures but also “soft” organizational elements, such as fostering a culture that encourages reporting concerns and implementing a no-blame policy. Such measures help identify issues before they escalate into formal disputes.

We are all susceptible to confirmation bias—we tend to accept information that supports our assumptions more readily than information that challenges them. In disputes, this often leads to an inaccurate assessment of one’s legal and commercial position.

Preventive measures should begin as early as the bidding stage, contractor selection process, and contract negotiations—not only during project execution. It is essential to identify potential sources of disputes in advance and implement appropriate mitigation measures at every stage, particularly through the systematic preservation of evidence.

A mature organization adopts a deliberate and informed approach to dispute management. Sound decisions require reliable data available at the right time. Only then can a business accurately determine when it is worth pursuing a claim and when it is wiser to resolve the matter through settlement or de-escalation.

Useful dispute-management tools include:

✅ BATNA (Best Alternative to a Negotiated Agreement) – Is an alternative solution, such as litigation or arbitration, more beneficial than a potential settlement?

✅ WATNA (Worst Alternative to a Negotiated Agreement) – What happens if negotiations fail?

✅ ZOPA (Zone of Possible Agreement) – Based on the BATNA and WATNA analyses, what is the range within which an agreement can realistically be reached?

It is equally important to assess the other party’s BATNA, WATNA, and ZOPA.

At Kosiński Advisors, we advise clients on a daily basis in connection with major EPC, BoP, TSA, and FIDIC contracts, renewable-energy land lease agreements, and complex investment project settlements. Our experience allows us to identify where disputes most commonly arise—and, more importantly, how to prevent them.

If there is something “hanging in the air” on your project, or if you would like to better safeguard your next contract, we would be pleased to discuss how we can help.