10 tips for a successful employment law mediation

Due to the enormous backlog in the trial courts because of COVID-19, more and more cases are being resolved through mediation. Here are 10 tips to a successful employment law mediation for both plaintiff's and defense counsel:

1. Select the appropriate mediator for the unique facts of your case and client

Mediators are not one-size-fits-all. Some mediators may be excellent handling employment discrimination matters, but not very experienced with wage and hour class actions. Think about the nature of your case to guide your selection process. Consider the race, religion, national origin, gender, sexual orientation and age of the plaintiff. Research the mediator and try to determine who would be the best fit for your unique case. Will the mediator relate well to your client? Consider the amount of the potential damages. Is this a high value case? If so, that would require a mediator who has a reputation for having large settlements.

2. Select your mediator early

Currently, top mediators who are in demand are booked up six months in advance or more. If you think that your case is a good candidate for resolution through mediation, see if opposing counsel is willing. Then start exchanging names.

3. Write a 'killer' mediation brief

I cannot emphasize enough the importance of your mediation brief. This is your first opportunity to introduce the mediator to the facts of your case. You want to frame the issues in the light most favorable to your client. I believe that you should exchange your mediation brief with the other side. If you have something that you wish to keep confidential, send that to the mediator in a separate confidential letter. By exchanging mediation briefs in advance of the mediation, you are saving valuable time for the mediation.

Most employment law mediators are well versed in employment law. Focus on the facts of your case, and apply them to the relevant law.

Send your brief to the mediator early. Mediators are busy people; if you want the mediator to have time to fully digest your brief and analyze it, send it at least a week or more in advance. If you are relying upon recent cases, send copies to the mediator along with a brief summary.

4. Have a pre-mediation call with the mediator

Most mediators will let you call them a few days before the mediation. Make the most of this opportunity. It is your first time to establish a rapport with the mediator and to frame the issues in the most favorable light for your client. The mediator may have questions for you after reading your brief. This is your chance to answer any questions, clarify any confusion and to persuade the mediator to view the case from your client's perspective.

5. Bring your brief to life with live testimony and/or video deposition clips at the mediation

Even the most persuasive legal writing can be dry. Nothing brings your brief to life more than having your client tell their story to the mediator in their own words. Even better, have a member of your client's household testify as well to the emotional distress. Note, you will need to prepare your client for this, just as if you were preparing them for trial.

If the other side is claiming how great their witnesses are, show a few short video clips of you impeaching them in their deposition.

6. Know the true settlement value of your case

Probably the most difficult part of preparing for your mediation is knowing the true settlement value of your case. Unlike personal injury cases, employment law cases are extremely difficult to evaluate because there are so many variables: Who is the judge? Where is the case being tried? What is the composition of the jury pool there? Is the case in arbitration? How sympathetic is the plaintiff? What is the difference between trial value and settlement value?

The best way to evaluate your case is to carefully read the "jury sheets" regularly and determine what is the trial value and settlement value of similar cases. Talk to your colleagues both defense and plaintiff's attorneys to predict a range of possible outcomes. Focus on the most recent cases, and determine what happened to them on appeal. Take into account all the variable of your case and determine the range of possible outcomes.

7. Preparation, Preparation, Preparation!

Those who fail to prepare, prepare for failure. If you want to have a successful employment law mediation, you must prepare as if you were going to trial. I cannot emphasize enough the importance of preparation. You will never know what unexpected issues will be thrown at you and your client during the mediation. So, you need to be prepared for all eventualities.

8. Lower your client's expectations

Whatever side you represent, your client will probably think that they have a great case. Bring them back down to earth before the mediation. If you represent defense, raise the potential exposure. If you represent the plaintiff, lower their expectations. That way when you achieve better results then you had predicted, you will come out as the hero.

9. Be patient

Neither party will get serious until the sun starts to go down. No matter how hard the parties and the mediator try to settle, no one starts moving until the end of the day. Don't be in a rush. No matter how hard you try, you still always have to "do the dance." There are no shortcuts. Therefore, keep that in mind during the tedious negotiations, where only incremental progress is being made.

10. Nail down the settlement agreement that night

While the parties are exhausted after a long, hard day of negotiations, it is critical to memorialize the key terms of your settlement and sign them that night. Thanks to the miracle of DocuSign, this can be accomplished very easily.

It is even better if you come to the mediation with a long-form agreement already prepared. Be sure to include all of the noneconomic items such as: tax treatment of the settlement (W2 vs. 1099); turnaround time for the settlement check; neutral reference; confidentiality; etc.

Lastly, be sure to thank the mediator for all of their hard work -- giving birth to the settlement. You may be working with this mediator again in the future. So, you want to establish a good relationship. 