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by Phyllis Pollack

From the Blog of Phyllis G. Pollack.

Phyllis  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

       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.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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