Mediation Tips and Arbitration Bits
| Publication year | 2021 |
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 the November 2020 issue of the Law Review, this column urged parties to exchange mediation briefs to maximize the chances of a successful mediation outcome. This column addresses the form and content of mediation briefs in individual labor and employment cases from this mediator's point of view.
In many, but certainly not all, individual cases the parties extensively argue the facts and law with respect to liability but pay little attention to damages—the key issue that will drive the settlement negotiations. For example, lost wages and benefits form the basis of most special damage claims and are often straightforward and uncontroversial. But not always. Entitlement to bonuses, stock options, commissions, and deferred compensation are "big ticket" damages that can be complicated and are commonly contested. If these damages are part of a case, they should be addressed by both the plaintiff and the defense in their mediation briefs, particularly in cases that are early in discovery, before both sides have a common understanding of the facts. Legal and factual issues related to the plaintiff's entitlement to compensation for loss of these benefits can best be argued in the briefs. Setting up these issues in the briefs allows the parties to educate themselves on the relevant facts and law. Introducing the discussion for the first time at the mediation may find one of the parties unprepared to respond or relying on misinformation.
Emotional distress damages frequently form the basis for a large portion of a plaintiff's settlement demand, yet often scant attention is paid to the factual basis for the claim. Supportive medical records are rarely produced and defendant's request for medical records or demands for an independent medical/mental examination are regularly resisted. Too frequently, emotional distress damages are responsible for substantial gaps in the parties' settlement positions. It is respectfully submitted that a plaintiff intending to insist on high tens of thousands, to hundreds of thousand dollars in emotional distress damages, show in factual detail in its mediation brief why they will likely be awarded substantial compensatory damages by a jury. And conversely, defendant should set forth its arguments as to why high emotional distress damages are unlikely.
The important question of mitigation is often treated as an afterthought. If it is a serious issue in a particular case, it should receive...
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