The Difference between a Successful Settlement and Just a Settlement in Commercial Mediations

At the prompting of some colleagues, I am beginning a practice as a mediator. Last week I completed my first commercial mediation, and recognized an important distinction between settlements. It explained the frustration I had had as a party in commercial mediations that were both unsuccessful and destructive. In those mediations the mediators were attempting to get settlements not successful settlements.

There are two types of settlements in mediations: settlements and successful settlements. Successful settlements have at their center the mediator’s successful recreation of the trust and respect of the business relationship. The settlement naturally flows from that relationship.

Settlements that are not successful result from a mediator’s focus on the formal resolution of the legal dispute. The parties participation is grudging, and usually grounded in intimidation from risk, rather than having been brought into the process and having an investment in achieving a successful conclusion to the controversy.
Just a few initial thoughts on the subject . . .

-Larry Salibra
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