Whether participating in an early mediation or in a mediation that takes place well into litigation there are several steps that counsel can take to make the day of the mediation go more smoothly and to put their case in the best position for settlement. After personally settling the full gamut of employment cases as legal counsel for both employee and employer clients for more than 20 years and now as a mediator, the following are my recommendations on how to have a more productive mediation:
1. Give a Strong Preview of What’s to Come If the Case Does Not Settle. Having a well drafted, edited and researched brief will set you apart. This requires spending the necessary hours to communicate with your client and/or review and select the relevant deposition testimony and put together an organized and thorough mediation brief. This process may uncover additional helpful relevant facts, witnesses you should follow up with in advance of the mediation, including to obtain declarations, and documents that you may need time to obtain. Some cases also have unique legal issues that require in-depth research. And you may need to prepare a time consuming damages analysis (see my prior blog post on mediating wage and hour cases by clicking here). Preparing your mediation brief at the last minute will be obvious to the mediator and will not put your case in the strongest position for a settlement that is favorable for your client.
2. Share Your Brief. Share your well written mediation brief with the other side in advance of the mediation. A mediation will be most effective if both sides have time to analyze and understand each other’s evidence and arguments. If you are concerned about telegraphing information that may be the subject of important deposition questioning of witnesses if the case does not settle then redact these sections from the version of the brief you share with opposing counsel and discuss whether to disclose this information with the mediator at the mediation. At a minimum, Plaintiff’s counsel should share their detailed damages analysis in advance of the mediation.
3. Be Ready Early. Aim to have your mediation brief completed over a week before the mediation. Providing it to opposing counsel well in advance of the mediation will give everyone sufficient time to consider the other sides perspective on the case. This is especially important where there is insurance or the company is large and may need to go through several layers to get the requisite authority to pay the money necessary to get the case settled. Providing Plaintiff’s mediation brief to defense counsel at least a week or two in advance of the mediation will give them an opportunity to communicate your arguments to the insurance adjustor or their client representative, which could result in increased settlement authority.
4. Make Sure Your Client Knows What to Expect. Prepare a letter that you can provide to every client who does not have experience with the mediation process that discusses what they should expect, what a mediation is and is not, how they should dress, and so forth, and provide it to them in advance of the mediation. This will save you time from having to go over the same information with every client prior to the mediation. There is enough work that needs to be done in advance of a mediation to not be spending additional time on housekeeping matters.
5. Set Expectations to Be on the Same Page. Discuss your client’s expectations for the mediation and your honest thoughts on the strengths and weaknesses of the case in advance of the mediation. Explain to your client that the initial numbers that are exchanged in a mediation are generally not representative of where the case will ultimately settle. Ask your client to be flexible and open minded as new evidence and legal analysis revealed during the mediation may result in the need for your client to pivot their position.
6. Get Your Client’s Tax Professional Involved Early. If there will be unusual or important tax related issues with a settlement, discuss those issues with your client in advance and try to have anyone providing your client with tax advice available to weigh in on the day of the mediation, if possible.
7. Ensure Everyone Who is Relevant to Reaching a Resolution Is Available at the Appropriate Time. Few things are more frustrating than learning at the end of a full day of mediation that the Plaintiff needs to get the blessing of family member or the Defendant needs the input of a business partner or third party who may have very different ideas about settlement. This individual would not have been present during the many important discussions that occurred throughout the day and can throw a wrench into reaching a deal. Find out in advance with your client if they will be making this decision independently with your input or if they feel that they will need to get someone else’s opinion as well so that you can decide if and when to involve that person during the mediation.
8. Troubleshoot Technology in Advance. To avoid delay on the day of a mediation that is taking place virtually, ensure that your client knows how to log in and has access to a video camera. If necessary, set up a mock Zoom session to confirm your client will be able to sign in and navigate the program for a smoother mediation experience.
Polina Bernstein is an experienced employment attorney and mediator who loves math, speaking and learning multiple languages, learning about other cultures and trying to find peace in a chaotic world. As an immigrant to the United States from Ukraine, Polina developed a strong work ethic and persistence to become the first person in her family to attend college and eventually go on to a successful career in the law. If you are looking for someone tenacious, experienced and compassionate to resolve an employment law dispute, please visit: www.bernsteinmediation.com and email [email protected] to find out about scheduling a mediation.