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Settlement - What are your thoughts?

"Settlement" is commonly regarded as the terminal objective of mediation (and particularly among lawyers), but is this view shortsighted?

Please provide your thoughts/comments below.

Thank you to Harold Coleman of AAA Mediation.org for providing this week's question.

Comments (7)

Anonymous:

I regularly tell participants in a mediation that " my client today is resolution." I do think that settlement is the goal of mediation; just ask the parties and attorneys who are participating in (and paying for)the process. While some parties enter into mediation to use it to obtain discovery, most do not and a good mediator is always pushing the parties to get to "yes"; which means a settlement. Settlement enables the parties to put the dispute behind them and move on with their lives. Settlement success is how mediators are judged by the community.

Settlements can occur at any time during an arbitration. In a sense, the arbitrator is probably the last to know. The parties or their counsel prefer to conduct their negotiations without alerting the arbitrator until such a time as they are confident that the matter is almost concluded and the terms of the settlement agreed. On occasion counsel would stop the process pending the finalization of the settlement and on occasion they conclude a tolling agreement which has the effect of suspending the proceeding until such a time as a settlement is concluded.The arbitrator needs to be careful balancing two issues: allow the settlement process to continue and hopefully to conclude with a final settlement and at the same time be ready to resume the arbitration at a short notice in the event the negotiations fail.

Micalyn S. Harris:

Settlement may be the terminal objective, but a mediation that eliminates some issues and/or narrows the issues to be determined by the tribunal can also be regarded as a successful mediation.

Louis Coffey:

I have been the sole arbitrator or panel chair in many commercial arbitrations that settled shortly after the preliminary hearing. I consider those settlements a victory for arbitration and for me personally.

While treating all persons involved with respect, I apply a firm hand in organizing and moving the process.

Participants and their counsel receive the message that I do not tolerate attempts to game the system and will hold them to the commitments to which they agreed during the preliminary hearing, which schedules most, if not all, events and stages of the process, through the issuance of the award.

I believe that my manner of handling the process plays a role in the parties settlement negotiations.

Lou
Coffey Consulting Co
coffeyconsulting@gmail.com

Kenneth Fargnoli:

Maybe a little shortsighted, but ultimately resolution for all the issues should be the goal of the mediator. As others have stated mediation can still be successful by narrowing issues of contention.

The goal in mediation is a clear, final settlement. However, disputes are usually complex and multilayered, or the parties would have settled it themselves. So the first goal is clarity. Clarity on the claim, clarity on the claim theory, clarity on the facts, and finally clarity on the dispute. Mediation, or a well run arbitration can efficiently provide this clarity. Sometimes, this clarity alone is enough to settle the case. Other times, it needs some discussion to help the parties to reach their own settlement. Sometimes it requires a third party decision maker to provide the “settlement” to the dispute in the form of a decision. But disputes must be settled and clarity is the first step.

Often, a subject matter expert who is also a skilled neutral can aid this process.

We throw around the term "settlement" a lot in mediation, but what does it actually mean? It tends to be bent towards a legalistic definition. I think parties seek a resolution, which can mean a wide swath of things. If we mediators help the parties gain a sense of empowerment, understanding of risk and consequence, and what their actual interests are, we've been successful as mediators. All of that will lead to a resolution.

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This page contains a single entry from the blog posted on May 12, 2019 5:48 PM.

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