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If At First You Don’t Succeed, Try, Try Again

In a recent mediation, the parties were only days away from a bench trial and remained hopelessly apart.  Plaintiffs were holding on to their high seven-figure settlement demand.  Plaintiff’s counsel knew that his clients did not have a case and asked for my help to bring his clients “back to reality.”  Plaintiffs were asserting a misappropriation of a trade secret claim, yet, as a matter of law, the plaintiffs did not have a legally protected trade secret.  I started the mediation with that fact and with the goal (set by counsel to both parties) of getting the parties to agree to a walk away. 


It is difficult to resolve a case when the parties feel they have been wronged.  I spent a long time in the mediation validating the parties’ emotions, yet making clear that they would have difficulty being successful at trial based upon California law.  I made some headway, but not enough to get the plaintiffs to completely abandon their case.  The defendant had a cross-complaint for payment of commissions, but it was clear that defendant would be willing to agree to a walk away if plaintiffs would similarly agree. After hours of work, plaintiffs lowered their demand to the low six-figures.  This was real progress but not enough, unfortunately, to settle the case.


The parties had their final status conference three days after the mediation.  It could not have gone better from a settlement perspective.  The judge made clear that he did not want the case to go to trial and ordered the parties back to me for another two hours of mediation.  That was all I needed finally to get the matter resolved.


It was now clear to the parties that the trial judge agreed with my analysis of the cases.  The only possible resolution here was a mutual dismissal without payment.  While plaintiffs were now in the proper mindset to move forward with a settlement, they needed just a little more to get the settlement across the finish line.  The carrot they needed was the ability to sue defendants again if other facts arose or were discovered justifying a claim. Counsel drafted the release accordingly to provide plaintiffs this “victory” they needed (i.e., the ability to bring another claim if warranted) and the matter resolved.


Plaintiffs moved from high seven figures eventually to agreeing to accept no payment to settle the case.  The two hours of additional mediation were clearly necessary to get the case resolved.  The adage proved true: If at first you don’t succeed, try, try again.

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