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Make the Most of Your Mediation - The Employment Case

Make the Most of Your Mediation - The Employment Case

Source: Law.com
Date: February 4, 2016

Hon. Lynn Duryee (Ret.)
Make the Most of Your Mediation – The Employment Case By Hon. Lynn Duryee (Ret.) February 4, 2016 Plaintiff submitted a reasonable demand far in advance of the mediation. Four months before the mediation was even set, plaintiff’s counsel sent his adversary a 10-page, beautifully written, old-school demand letter. The letter laid out the facts and law in support of plaintiff’s claim. It gave a demand that was aspirational, but not astronomic. And, most importantly , the letter was served in plenty of time for all the defendant decision-makers to review and consider in advance of the mediation. The lawyers agreed to exchange all the information they had well before the mediation. The lawyers appreciated that they would be able to better advise their clients about the benefits of settlement if each were in a position to evaluate the case as fully as possible. Accordingly, they exchanged the evidence available to them: wage state- ments, overtime records, emails, names of witnesses and expected areas of testimo- ny, as well as current legal theories. This helped lawyers on both sides start the mediation feeling fully prepared to discuss the case with the mediator and with their clients. The lawyers cultivated a respectful relationship with one another. In separate pre-mediation calls with coun- sel, each side told the mediator that his opponent was a “good guy.” Although the lawyers disagreed on the facts and the val- ue of the case, they had made a genuine This article was originally published by LAW.COM and is reprinted with their permission 1.800.352.JAMS | www.jamsadr.com Mediating employment disputes before legal action is filed gives parties an op- portunity to settle their differences before incurring impressive attorney’s fees and expending valuable effort. Yet, it’s no easy thing to settle a case before discovery has been conducted. Here is how one set of motivated participants successfully set- tled a pre-filing employment dispute in four hours. 1. 2. 3.effort to understand the position of the other side and respect the views of the opponent. The respect they had for one another contributed to the professional ambience of the mediation. All principals attended the mediation. The employee and employer were present in separate rooms, and both came prepared to speak openly with the mediator. Defense counsel had not had the opportunity to meet with plaintiff, and so, with counsel’s permission, the mediator invited defense counsel to meet the plaintiff and hear her story. The plaintiff came fully prepared to speak about her experience regarding pregnancy discrimination, while defense counsel rose to the occasion and listened carefully and compassionately. This brief session in itself was one big reason the case ultimately settled. The parties maintained momentum by remaining optimistic about settlement and making changes to their positions. Both sides were clear that they wanted to settle the case, and both were clear that their number (and not their opponent’s) was in the fair range. The parties were quite far apart during most of the negotiations, but each side continued to make baby steps to move closer together. Ultimately, each side offered a bracket, and after brackets were exchanged, the case settled easily. During the day, each side remained fully commit- ted to settling. Neither side threatened to walk out. Neither side accused the other of bad faith. Each lawyer greeted the news about the change in position of his oppo- nent with optimism. There was a feeling all during negotiations that settlement was just around the corner. This article was originally published by LAW.COM and is reprinted with their permission 1.800.352.JAMS | www.jamsadr.com Early preparation. Excellent briefs. Profession- al lawyers. Presence of decision-makers. Mu- tual respect. There’s the prize-winning recipe for settling a case in just a few hours. • Hon. Lynn Duryee (Ret.) is a JAMS neutral who joined after serving on the Marin County Superior Court for more than 20 years. She presided over and settled thousands of commercial, contract, and negligence cases, along with every other type of civil case filed. She can be reached at lduryee@jamsadr.com. 4. 5.

Mediating employment disputes before

legal action is filed gives parties an opportunity

to settle their differences before

incurring impressive attorney's fees and

expending valuable effort. Yet, it's no easy

thing to settle a case before discovery has

been conducted. Here is how one set of

motivated participants successfully settled

a pre-filing employment dispute in

four hours.

Plaintiff submitted a reasonable

demand far in advance of the mediation.

 

Four months before the mediation was even

set, plaintiff's counsel sent his adversary

a 10-page, beautifully written, old-school

demand letter. The letter laid out the facts

and law in support of plaintiff's claim. It

gave a demand that was aspirational, but

not astronomic. And, most importantly, the

letter was served in plenty of time for all

the defendant decision-makers to review

and consider in advance of the mediation.

The lawyers agreed to exchange all

the information they had well before

the mediation.

 

The lawyers appreciated that they would

be able to better advise their clients about

the benefits of settlement if each were in

a position to evaluate the case as fully as

possible. Accordingly, they exchanged the

evidence available to them: wage statements,

overtime records, emails, names of

witnesses and expected areas of testimony,

as well as current legal theories. This

helped lawyers on both sides start the

mediation feeling fully prepared to discuss

the case with the mediator and with their

clients.

The lawyers cultivated a respectful

relationship with one another.

 

In separate pre-mediation calls with counsel,

each side told the mediator that his

opponent was a "good guy." Although the

lawyers disagreed on the facts and the value

of the case, they had made a genuin

effort to understand the position of the

other side and respect the views of the

opponent. The respect they had for one

another contributed to the professional

ambience of the mediation.

 

All principals attended the mediation.

 

The employee and employer were present

in separate rooms, and both came prepared

to speak openly with the mediator. Defense

counsel had not had the opportunity to

meet with plaintiff, and so, with counsel's

permission, the mediator invited defense

counsel to meet the plaintiff and hear her

story. The plaintiff came fully prepared

to speak about her experience regarding

pregnancy discrimination, while defense

counsel rose to the occasion and listened

carefully and compassionately. This brief

session in itself was one big reason the case

ultimately settled.

 

The parties maintained momentum by

remaining optimistic about settlement

and making changes to their positions.

 

Both sides were clear that they wanted to

settle the case, and both were clear that

their number (and not their opponent's) was

in the fair range. The parties were quite far

apart during most of the negotiations, but

each side continued to make baby steps t

move closer together. Ultimately, each side

offered a bracket, and after brackets were

exchanged, the case settled easily. During

the day, each side remained fully committed

to settling. Neither side threatened to

walk out. Neither side accused the other

of bad faith. Each lawyer greeted the news

about the change in position of his opponent

with optimism. There was a feeling

all during negotiations that settlement

was just around the corner.

 

Early preparation. Excellent briefs. Professional

lawyers. Presence of decision-makers. Mutual

respect. There's the prize-winning recipe

for settling a case in just a few hours.

 

Hon. Lynn Duryee (Ret.) is a JAMS neutral who

joined after serving on the Marin County Superior

Court for more than 20 years. She presided over

and settled thousands of commercial, contract,

and negligence cases, along with every other

type of civil case filed. She can be reached at

lduryee@jamsadr.com.