Monday, May 12, 2008

How Do You Know If You Have A Successful Settlement?

Perhaps the best indication of the whether the settlement was successful is whether there is a distinct change in the demeanor of the parties. Litigation by its very nature creates animosity among the parties. The lawyers may go out for a drink together after court because they are adversaries at a professional, not personal level.

The parties in a lawsuit are in a very different state. For them the lawsuit is personal. Parties will come in with substantial animosity. Often it is overt; sometimes it is disguised with a thin veneer of cordiality, but it almost always there. Successful commercial mediations convert that animosity into trust and respect.

I knew my mediation was successful when, after mediation was over, the parties relationship had changed. During the private session of the mediation the veneers came down and the defendant described in the plaintiff in terms that left no doubt about the existence animosity. The plaintiff was equally expressive about his view of the defendant as untrustworthy.

At the end the mediation, the plaintiff had accepted as part of the settlement a promise that was legally unenforceable to insure further compensation by providing accommodating business arrangements. The defendant, who had just stipulated to a substantial judgment and had earlier described the plaintiff in the most unflattering terms, invited the plaintiff and his attorney to lunch. The trust, respect and accommodation of the business relationship had been reestablished—the settlement was successful.

-Larry Salibra
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