Defendant — who happened to be representing himself — arrived quite a bit early for the mediation, so I invited him to join me in one caucus room to discuss the facts that gave rise to the litigation. Facing allegations he had misappropriated trade secrets and started a new business in violation of a non-compete clause, he explained his position and stated — convincingly — that he lacked the financial ability to offer anything meaningful to settle the pending lawsuit.
Shortly thereafter, plaintiff and his counsel arrived. I accompanied them to another caucus room, where we began to talk about the dispute. From the outset, plaintiff made clear he had no interest in settling without a significant monetary component. Less than twenty minutes into the mediation and it appeared an impasse was inevitable.
Unless . . .
The idea seemed ludicrous, so why bring it up? Then I heard this tiny voice inside my head say: “nothing ventured, nothing gained.” After a rather pregnant pause – the prolonged silence presumably telegraphing how uncomfortable I was with the question I was about to pose — I asked plaintiff whether there were any circumstances under which he might consider working with defendant again. Plaintiff’s counsel turned abruptly in my direction — staring at me incredulously, almost as if to say “are you insane?” — but before he was able to say anything, plaintiff responded, rather unexpectedly, “perhaps.”
Hoping I had managed to conceal my surprise, I excused myself so I could pose the same question, in reverse, to defendant. Thankfully, he also found the idea intriguing
Given their mutual interest, I brought the parties together to discuss how such an arrangement might work. Both parties preferred to sleep on it — but they agreed to meet again a few days later, at which time they worked through their differences and reached an agreement in principal.
Years later, I had another “nothing ventured, nothing gained” moment in a business partnership dispute between plaintiff and his former son-in-law. When it became clear the latter would never willingly agree to pay plaintiff a single penny, I mused aloud whether defendant might be open to making a sizable contribution to a college savings account in the name of his own daughter, designating plaintiff — who happened to be his daughter’s step-grandfather — to be the trustee. With a few tweaks, the idea paved the way for an eventual resolution.
“Nothing ventured, nothing gained” is an ancient but elegant proverb that reminds us there is no idea so foolish that it is not worth at least exploring. Had I not taken the chance to pose the questions I decided to pose, the parties might have found themselves still mired in litigation. Instead, they found themselves pursuing new ventures with much more to gain.
As always, it would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Best regards,
Floyd J. Siegal