About the Author
is a shareholder
in Wilenchik &
Bartness, PC, a
law firm specializing in commercial
litigation, commercial mediation,
real estate law.
She has been a
member of ACR
since 2012, and
her practice in
the areas of real
estate, commercial, banking and
mediation. She is
a Board Member
and President-Elect of ACR’s
a member of the
editor of the
Becky A. Bartness
Unique to Commercial Transactions
I have practiced real estate, environmental, banking, and corporate law for thirty-six years, and have
served as a mediator/arbitrator for matters relating to these areas of the law for the last twenty five
years. This means nothing other than that I am old.
What means something is that I’ve learned one or
two things along the way.
My colleagues serving as family law mediators
express envy for what they perceive as the emotionally less volatile field of commercial mediation.
“Not so,” I demur. “The emotions are there, but are
Anyone reading this who has mediated disputes
between lenders and borrowers, or among share-
holders of a closely held corporation or partners of a
long-standing partnership, will be nodding. Beneath
the patina of sophisticated, logic-driven initial
negotiations often lies small-minded distrust and
resentments fed by years of real or perceived slights
or acts of dishonesty.
Typically, each participant begins the mediation convinced that once the other participant understands
the superb logic and righteousness of the former’s
position, then he/she will unconditionally accept said
position as the Truth. An effective mediator will help
the participants adjust their initial positional posturing
by employing the various tools he or she has learned
through training or life-time experience. Either that
or a couple hours later the participants will not have
heard one thing the other said.
“But many of these participants are successful
business people,” you say. “They are pros at nego-
tiation, and know what is possible and probable even
before they arrive at the mediation.”
Yes. Many of them are. But let’s take a look at those
other common commercial mediation participant-
Type 1: The Nascent Entrepreneur.
These folks have built a business based on an
idea despite, often as not, a Greek chorus of nay-
sayer family members, friends, banks, and potential
investors. They have often invested all their sav-
ings in the business. People in this category have
good survival skills, are independent, and score high
on the distrust scale. My approach is to gain the
trust of all participants by careful listening, unbiased
and non-judgmental reframing, convert issues to
interests, and continuously maintain the focus of all
participants on the goal of problem solving. Noth-
ing new there. Just don’t be fooled by the nascent
entrepreneur’s exterior show of logic and try to take
a shortcut to resolution.
Type 2: The Established Entrepreneur.
The established entrepreneur has a few successes
under his/her belt and scores lower on the distrust
scale, but now dismisses naysayers as mere mortals
lacking foresight. His or her investors, usually friends
or doctors, defer to this type due to his/her track
record and the belief that he/she will make them lots
of money. Again, take no shortcuts, and focus more
on upholding the participants’ images of themselves
to the extent they do not conflict with or provide a
barrier to resolution. A few well-placed compliments
in caucus go a long way.
Type 3: The Next Generation.
A situation where Dad or Mom created a highly profitable business and has decided to retire and hand the
reins to Junior. Junior wants to make his own mark and
show the founder how competent he or she is but at
the same time will do nothing without the express or
implied approval of the founder. The Next Generation
needs assurances that in the problem-solving context no idea is silly. Respectful active listening to all
participants in a joint session, and added encouragement in caucus, goes a long way to empowering this
sort of individual.
Type 4: The Company Man.
This is a corporate officer who has risen through the
ranks due to leadership skills vis-á-vis the employees
reporting to him/her and communication skills vis-á-
vis his/her superiors. Leadership skills vary depending
on the corporate milieu, which can be autocratic, collaborative, or bullying. Communication skills (once again,
based on the corporate milieu) encompass a wide range
including lack or avoidance of accountability (finger
pointing), sycophancy, or collaborative management.
Corporate politics are often at play in a finger-pointing
and/or sycophantic culture. The Company Man participant is discussed more below.