Embrace Failure: Get A Good Result in Mediation

Instead of going into a mediation like it’s “déjà vu,” try to think about it as “vuja de.” In other words, it won’t be the same as it has been before.

It was dark as I took my early morning walk with my dog, Red, while listening to a TED Talk. Entering Piedmont Park, it occurred to me how beautiful the sky becomes at the moment between darkness and sunrise. There is a sudden change, the beautiful pinks go away, and the bright blue sky appears just as the sun rises. The morning’s own “ah ha” moment.

I had my own “ah ha” moment as I was watching the day begin. The speaker I was listening to was Adam Grant, and he talked about some of the surprising habits of original thinkers and the concept of “vuja de,” or looking at things differently than before. He also talked about the importance of failure. As I listened, I thought about how powerful his message could be in the context of two sides trying to come up with a resolution in a process we call mediation. As a mediator, I often see lawyers approaching the process as if it is déjà vu. They put offers and counteroffers on the table hoping a neutral like myself might bring the parties to consensus.

Often before a mediation, the parties tell me that they feel the process will be a waste of time because the other side is so unreasonable. Whenever I hear such a refrain, I try to point out that this is usually the reason why mediation is needed. If the two sides were already close, then they would probably be able to settle the case on their own. It is precisely because they are so polarized that they need the intervention of a mediator.

But instead of going into a mediation like it’s “déjà vu,” we should embrace the concept of “vuja de” as Adam Grant suggests. “Vuja de” would allow counsel and the mediator to explore how they could make the process better and step outside their comfort zone.

If you embrace this concept of “vuja de” and not “déjà vu,” you have to embrace some failure with it. As Grant describes, “The greatest originals are the ones who fail the most, because they are the ones who try the most. You need a lot of bad ideas in order to get a few good ones.”

I encourage us to embrace failure and not run from it. We should strive to be creative to avoid ending up before a jury and rolling the dice. I once represented a plaintiff in a personal injury case, and we received an outstanding verdict and award from the jury. While on the elevator in the Richmond County Courthouse, I asked the jury foreperson what was the most important factor in the jury’s decision. She replied, “. . . your partner sitting at the table has curly hair like my son, and I just knew everything you said must have been the truth.” Talk about rolling the dice!

“A good settlement is better than a good lawsuit,” said Abraham Lincoln.  Fortunately, the vast majority of civil cases today are settled thanks to the widespread acceptance of mediation as a highly effective form of dispute resolution. We should continue to embrace failure as we come up with an idea that can bring consensus and resolution. Here’s to failure until you hit that great idea. Here’s to “vuja de” and not just “déjà vu.”

David M. Zacks, Esq., is a JAMS neutral based in Atlanta specializing in business/commercial, employment, health care, insurance and other matters. You may reach him at dzacks@jamsadr.com.