I recently came across some quotes from Thomas Edison and I thought it would be interesting to apply Mr. Edison’s wisdom to mediation. So this will be a multi part post involving Edisonian wisdom.
Hell, there are no rules here– we’re trying to accomplish something.
Thomas A. Edison
Some people think that there are certain established rules that cannot be broken in mediation. For example, that the plaintiff must always make the first demand; or that you must respond in kind to a demand. The reality is that there are no such rules, and the reality is that rules are meant to be broken. Mediation is a fluid process that requires thought in the moment. Some of the best laid plans and intentions regarding how a mediation will go are thrown out the door after the first offer.
Certainly, there are guidelines. But it is a mistake to think that those guidelines are set in stone. They aren’t. For example, one time I suggested that a party try a bracket offer instead of a hard number. That party responded, “we haven’t made enough offers for us to do a bracket.” That statement implies that there is a rule as to how many offers must be made before a bracket can be used. I have had mediations where no bracket was used; where one was used as the first offer; where one was used after 2 rounds; and where one was used after 7 rounds. It varies depending on the circumstances. So the fact is, “there are no rules here – we’re trying to accomplish something.”