From the Blog of Phyllis G. Pollack.
Last weekend, I made a presentation on Alternative Dispute Resolution at the Western Cargo Conference (“WESCCON”) in Denver, Colorado. My audience consisted of customs brokers, freight forwarders, warehouse owners and others involved in the transportation and logistics industries.
My presentation focused on defining Alternative Dispute Resolution, explaining the various forms or models it may take (e.g. negotiation, mediation, arbitration, neutral fact finding, mini-trial, early neutral evaluation, private judging, and collaborative law), discussing the use of ADR in everyday business and providing sample clauses that could be incorporated into contracts and other business forms. (For more on this, see pgpmediation.com/wesccon).
After the presentation, one of the participants told me how “empowering” my presentation had been. As a small business owner, she lived in fear of making an error or at least an “error” perceived by a client and being sued over it with all of the attendant attorneys’ fees and costs that comprise litigation. She had been to small claims court once before and found it quite unsatisfying as the judge did not even listen to her, but simply and literally made a “snap judgment,” without most of the facts. She did not want to deal with attorneys as they were too expensive and time-consuming. So, she dealt with the issue of “how to deal with conflict with a customer” by avoiding it and living in dread of making a “mistake” and getting sued.
My presentation gave her a way out of this dilemma: a middle ground; a way to deal with conflict without all of the anguish and expense involved in litigation. By simply incorporating and requiring one or more models of ADR (such as mediation, or arbitration) into her Customs Power of Attorney, Service Agreement, Terms and Conditions of Service and/or Bill of Lading, etc. as a pre-condition to filing a lawsuit, she provides her company with the means to resolve conflict, without the anguish inherent in litigation. While admittedly, not every matter will settle through mediation, in all probability, most of the disputes will get resolved through such a process. More importantly, the use of ADR will force the parties to focus on the dispute and resolve it before they become too invested, entrenched and hardened in their positions.
Consequently. . . she felt “empowered” – I had given her a means to resolve business disputes without having to declare war or live in fear that war would be declared on her. And the means I had provided is simple, inexpensive, flexible, voluntary, confidential, and totally controlled by the parties. Clearly – a win-win-outcome.
Before this presentation, I had never thought of ADR as empowering. . . but clearly. . . it is.
. . . Just something to think about.
Now, two weeks after the debut of much hyped television program, “Fairly Legal,” that has stirred a remarkable amount of buzz---at least among professional mediators--- it might be a good...By Robert Benjamin
JAMS ADR Blog by Chris PooleExcept in “bet the company” circumstances, extensive discovery, dispositive motions, expert reports, and hearing costs are making courthouse litigation cost prohibitive. While arbitrations should bring...By Eric Van Loon