SETTLEMENT OF EMPLOYMENT LITIGATION: MEDIATION TECHNIQUES THAT WORK

Transcription

1 SETTLEMENT OF EMPLOYMENT LITIGATION: MEDIATION TECHNIQUES THAT WORK By Paul Grossman Paul Hastings LLP 515 South Flower Street, 25th Floor Los Angeles, California (213)

2 I. Timing pros and cons of settling or mediating at the outset A. Advantages: avoiding attorneys fees on both sides avoiding discovery B. Disadvantages: deposition of plaintiff may be less effective II. Creating an environment for settlement putting the pressure on A. Early Rule 68 (or state equivalent) offer of judgment B. Unconditional offer of reinstatement C. Unconditional payment of lost wages and/or medical expenses D. Unconditional offer of outplacement E. Motion to dismiss F. Adjourning the deposition of the plaintiff after you make a significant hit G. While defendant s summary judgment motion is pending III. Mediation techniques that work A. Who should the mediator be? 1. A retired judge 2. A non-judicial professional mediator 3. Different types of mediators for different types of cases: in the big class action, a prominent lawyer specializing in the field B. How to get the other side to agree to mediation and a particular mediator: 1. Doing it directly 2. Having the mediation firm contact the other side -1-

3 C. Alternative fee arrangements: 1. A flat fee for a very long day by far the best 2. Hourly rates D. Importance of sharing the cost of mediation most common options: 1. A split 2. The defendant/employer paying 100% 3. Most common the employer pays most of it, but the plaintiff pays a sum meaningful to the plaintiff E. Location of the mediation: 1. Defense counsel s office 2. Mediation firm s office 3. A hotel 4. Almost never opposing counsel s office or the place of employment F. Briefs: 1. Normal components: a. Material facts (1) which mediator can share with other side (2) which mediator cannot share with other side without permission -2-

4 b. Applicable law c. Damages to date and, if appropriate, potential post-mediation damages d. Pressure points e. History of the litigation f. History of settlement negotiations or the absence thereof g. Statement of expectations with respect to range of settlement 2. Do not exchange mediation briefs mediation brief for mediator only G. The written settlement agreement: 1. Bring several copies to the mediation 2. Bring a disk verify in advance word processing equipment which is compatible will be available 3. When to negotiate on language before or after agreement on economics H. Who to have at the mediation: 1. Someone the plaintiff respects who might have some influence on the plaintiff 2. Someone knowledgeable about the facts 3. A key witness if impressive 4. Someone with full settlement authority -3-

5 I. The physical setting: 1. Two widely separated rooms 2. The joint session room: a. Large enough for all parties b. Insure availability of what you will need during your opening statement: (1) blackboard (2) easel (3) transparency projector J. First arrival let the mediator and the other side bond K. The mediation book: 1. The mediation book is a tabbed binder containing highlighted cases, statutes, regulations, exhibits, deposition excerpts, and other relevant material. 2. There should be a separate binder for each person in the room. The cover of each mediation book should include Property of Defendant To Be Returned to Defendant at End of Day. L. The opening statement: 1. Although nominally directed to the mediator, it is really directed to the plaintiff and/or counsel. 2. The opening statement is essentially a review and explanation of the key points in the mediation book. 3. If you are not using a mediation book, outline key points on the easel leave the easel in the room when you leave for your caucus room. M. Professional mediator s technique of speed-talking back opening statements -4-

6 N. The caucusing phase shuttle diplomacy between the parties who are in different rooms 1. Sharing information with the mediator which you do not authorize the mediator at the time in question to share with the other side 2. Use a mediator do not trust a mediator a good mediator s objective is to obtain a settlement, not to obtain what in the mediator s judgment is the fairest possible settlement 3. Whether or not to tell the mediator true bottom line 4. Who makes the first offer? reasons to accede to a mediator s demand that it be the defendant 5. Unusual mediator calling witnesses O. The end game 1. Resolution through shuttle diplomacy (back and forth) 2. Take it or leave it rarely a good idea but there are exceptions 3. A mediator s interim proposal Bracketing brings the parties into a realistic range 4. A final mediator s proposal keeps both sides bargaining position undamaged if no settlement be sure it includes essential elements 5. A binding settlement with a to-be-chosen neutral to decide on the dollar amount a. baseball b. in between 5. A partial settlement a. A discrete portion of the case b. Amount based on future event for example, if summary judgment is granted by the trial court, settlement of X Dollars; if summary judgment is denied, settlement of Y Dollars -5-

7 P. A cardinal rule: if there is an agreement, never leave the mediation without signed, binding document preferably a complete settlement agreement and general release make sure complete enough to constitute a binding settlement Q. If no settlement is reached: 1. Post-mediation contact 2. Another day of mediation with the same mediator 3. Switching to another mediator R. Likelihood of reaching a settlement if parties agree to mediation * * * -6-