Mediation Tips and Arbitration Bits
| Publication year | 2021 |
| Author | By Alan R. Berkowitz |
By Alan R. Berkowitz
Alan R. Berkowitz is a mediator with Judicate West, specializing in individual and class action cases. He has resolved hundreds of cases involving all types of employment matters, including wage and hour class actions and PAGA claims, many of which resulted in seven-to-eight-figure settlements. Before retiring from the practice of law to become a full-time mediator, he was a partner with Bingham McCutchen, managing partner with Schachter Kristoff Orenstein and Berkowitz, and Regional Attorney at the NLRB, Region 32. He has tried over 50 cases in state and federal courts and administrative agencies on behalf of both defendants and plaintiffs.
In most labor and employment mediations, the focus is solely on resolution, which is defined primarily in monetary terms. Of course, there are other issues that will be part of the settlement agreement that may require negotiation and resolution, but for the most part the goal is to reach agreement on a settlement amount and to leave the mediation with a binding agreement. Unlike some mediations—such as in family law, neighborhood, or partnership disputes—in which repair and preservation of relationships may be critical—in employment matters the parties would generally be happy if they never saw each other again. Nevertheless, there are cases that require more than just money for resolution.
In sexual harassment, discrimination and wrongful termination matters, there is often an emotional component that must be addressed. Some plaintiffs come to mediation angry and frustrated at feeling disrespected, unheard or cast aside after years of service. Their anger is expressed in the language of mediation—money. Very high settlement demands that a defendant perceives as out of line can sabotage negotiations by causing defendant to feel that plaintiff is not acting in good faith. Defendants see high settlement demands as unrealistic wishful thinking and negotiate accordingly. Resolution is very difficult, if not impossible, in those circumstances. Savvy counsel understand that the very real emotional component underlying the legal issues must be addressed before resolution is possible. Mediation provides a unique opportunity to deal with these issues in a constructive way.
For example, if the mediator is made aware of this issue by counsel before the mediation they can take steps to address it. The mediator, with the knowledge and agreement of counsel, may arrange for plaintiffs to explain their positions and feelings directly to defendant at a joint session. By prearrangement, defendants will have selected an appropriate representatives to be empathetic listeners coached on how to appropriately respond without admitting fault. This may be the first time plaintiffs will have had an opportunity to express themselves to defendant in a safe environment, which can have a salutary and cathartic effect. If this "scripted" approach is not appropriate or desired, just having plaintiffs tell their stories to the mediator will go a long way to helping reduce pent-up frustration.
Some cases do not settle at mediation. The case may not be ready for settlement for multiple reasons including, it is too early in the litigation process, further discovery is required, even a party is not emotionally ready. Sometimes the parties may have unrealistic evaluations and expectations of the matter (see my remarks in this column in the March edition of the California Labor & Employment Law Review, Are Lawyers Good at Predicting Case Outcome and Settlement Value). Whatever the reason for the impasse, the mediation should not be simply chalked up as waste of time and resources. Use the remaining time for which you have paid to reach agreement on case planning, resolution of outstanding discovery...
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