By Steven G. Mehta

Just because something doesn’t do what you planned it to do doesn’t mean it’s useless.

Thomas A. Edison

In mediation, you often have to take risks with regards to strategies that will work.  Not all strategies will work.  Sometimes, the parties will feel as if it was a waste of time to go down a certain path.  You have to have confidence in yourself and your strategies.  In addition, just because one tactic didn’t work, doesn’t mean it didn’t serve a purpose.

Recently, I mediated a case where it was clear from about two hours that the multiple defendants needed to work out their issues of allocation of the settlement amount before the case could be settled.  I informed the defendants of this dilemma and then suggested to work out “hypothetically” to see if we could work with a number from the plaintiff.  Until the allocation was decided, no number could have been negotiated since each side refused to put up any money until it knew what portion it would pay for the entire settlement.

We then proceeded to work towards a number that was acceptable to the plaintiff “hypothetically.”  At the end of another long four hours, the plaintiff agreed to a number – which was fair for plaintiff and a pretty good deal to be divided by two defendants.  Still, the defendants refused to put up any money on the grounds that they couldn’t allocate the number.  It seemed like a failure.

However, a month later, that settlement amount formed the basis of the settlement which involved both defendants.  Just because the strategy doesn’t do what you planned it to do, doesn’t mean it is useless.