Optimizing the Settlement Value of the Single-Plaintiff Employment Case Strategies for Plaintiff’s Counsel 2018 Read the PDF I feel very fortunate that over my 35-year career, I have had the opportunity to litigate and view employment cases from the perspective of counsel for plaintiff, defendant, and, most recently, as a mediator. It is from this vantage point that I offer the following observations. Should the Plaintiff Case Be Accepted? It is axiomatic that employment litigation, handled properly and aggressively, is extremely time consuming and expensive. Even in the single-plaintiff employment case, expended attorney hours alone will routinely exceed 1,000. At times attorney fees may be available by statute. While this may provide an enhanced comfort level for plaintiff’s counsel, and will certainly be a consideration for the defense team in its evaluation of plaintiff’s case, do not overestimate its importance. In most cases attorney fees are not awarded by the court, but are only considered in settlement discussions. Rarely will a defense team consider a settlement which reflects the true value of attorney fees. Thus, it is imperative that serious attention be given to the decision as to whether the case should be accepted in the first place. From the perspective of plaintiff’s counsel, I believe there are four essential questions to ponder before accepting the case. The first, although hardly unique to employment cases, is whether you have a solvent defendant who can afford to satisfy a judgment on its own or through insurance. If not, the case is not worth accepting. Second is the potential value of the case. Due to the time intensive nature of employment litigation there must be good potential value in order to merit consideration. The third factor is the likability of the plaintiff. I believe that more so than in other genres of cases, whether or not the plaintiff is viewed favorably will heavily influence the prospects of obtaining an excellent settlement or jury verdict. This is because if you can get your case to a jury, the question in their minds is usually “was this person treated fairly?” If the answer is in the negative, the jury will usually find a way to compensate your client. The fourth consideration, interrelated to the third, is whether the case is likely to survive a motion for summary judgment. Obviously, at the very early stages it is much more difficult to make this assessment. Prior to investing substantial resources, however, you should feel comfortable that you have a relatively decent chance of clearing that hurdle. Only after weighing these factors should a decision as to whether the case should be accepted be made. Fee Agreement It has always been my general philosophy that if I did not believe a single-plaintiff employment case was worth taking on a contingency, it was not worth taking. In those instances where there is doubt, I have used hybrid fee agreements. These include a reduced hourly fee to be supplemented in the event of a successful result, an hourly fee convertible to a contingency fee at the discretion of the plaintiff, and various sliding scale agreements. The type of fee agreement which you use should be tailored to the specific circumstances of your case. Preparing the Complaint From the defendant’s perspective, one of the greatest mistakes that can be made by plaintiff’s counsel is asserting non-viable causes of action against the defendant. Defense lawyers have a field day when this occurs, filing multiple demurrers and motions for partial summary judgment. If the sole focus of your discrimination case is race, why plead violations of other protected areas? This not only leads to attacks on the pleadings, but regularly results in difficult questions to the plaintiff in deposition and trial. You have seen it before: one of the allegations in the complaint is based upon age discrimination, with no real supporting facts. The defendant sends an interrogatory asking plaintiff to state all facts supporting this allegation. The milk toast response is a result of a feeble attempt to support the claim. Ultimately, this leads to painful and damaging cross examination questions at deposition and trial. If the concern that you have in drafting the complaint is that you want to make sure all potential causes of action have been asserted, remember that there will always be the opportunity to amend the complaint should the facts developed so support. An additional potential pitfall is the inclusion of a cause of action which may result in the removal of your case to federal court, where you probably don’t want to be. This can occur in an obvious setting, such as where a federally based claim is asserted or in a more oblique circumstance, such as where a pleading implicates a collective bargaining agreement. In drafting the complaint, do not underestimate the value of asserting a claim for punitive damages, should the circumstances support such a claim. The impact of doing so may be quite significant. In those cases where there is insurance coverage, multiple issues come into play for the defense team: Is there a need to pay independent counsel? If punitive damages are asserted against an individual, will the carrier bear responsibility? Will independent counsel advocate on behalf of the plaintiff in order to avoid exposure to the client? All of these issues which need to be considered by the defense team strengthen your settlement position. The Discovery Phase There are two main points here that I wish to emphasize. First is the importance of the plaintiff’s deposition. As counsel for plaintiff, you only have to prepare one percipient witness, a witness who will affect liability and case value like no other. It is crucial that the plaintiff be properly prepared. Seasoned defense lawyers typically prepare their key witnesses for at least a day before deposition. At least that amount of preparation is needed in order to properly prepare the plaintiff. The plaintiff’s deposition is the time at which defense counsel not only fact finds, but sets up potential motions for

Preparing for and Mediating the Single Plaintiff Employment Case Strategies for Defense Counsel 2025 Read the PDF Unlike many other types of litigation, employment matters are personal and the stakes can be significant. Emotions often run high. Plaintiff truly believes that he or she has been wronged and wants retribution. The employer is often equally steadfast in its position. The employer wants to eliminate the possibility of negative publicity, disruption to its workforce, low morale and financial costs. Moreover, the employer does not want to set a “precedent” that will encourage future lawsuits. The mediation setting affords Plaintiff an opportunity to vent to a neutral third party and, for Defendant, a chance to explain the reasons for the employment actions taken. Mediation of an employment case a also offers the prospect for crafting creative solutions beyond compensatory damages. This article addresses strategies that Defense counsel might consider in preparing for and mediating the single Plaintiff employment case. Preparing for the Mediation Determining when the mediation should occur is of significance. Defense counsel has a clear advantage when it comes to assessing the merits of the case early on. Almost invariably, most of the key witnesses, with the exception of Plaintiff, are present or former employees of Defendant and immediately accessible to defense counsel. Thus, defense counsel has the opportunity to evaluate the credibility of witnesses, anticipated testimony, and documentary evidence in making an initial assessment of the substance of Plaintiff’s claims at least as it relates to liability. Conversely, Plaintiff’s counsel, in making an early assessment, must rely solely on the client, the client’s own documents and perhaps a few favorable witnesses. Notwithstanding this advantage, it is rare that defense counsel can intelligently assess the merits of the case without at least taking the Plaintiff’s deposition, by far the most critical event in the discovery process. From the defense perspective, it is rare that a mediation will go forward before that happens, unless it appears that liability is crystal clear and that the case can only worsen for Defendant if discovery progresses. There are a number of factors to be considered in making the decision as to when the mediation takes place. Is there enough information for Defense counsel to consider to be able to evaluate liability and damages? Is this the type of case that will result in unwanted publicity should the case proceed to trial? Is Plaintiff still employed with the company? Should a motion for summary judgment be filed in advance of the mediation? If attorney fees are driving the case, does it make sense to get to mediation as quickly as possible? Finally, there must be consideration of how an unsuccessful mediation might impact the case. While I may be accused by fellow mediators of heresy, I do believe that there are times when the goal of a mediation may not be resolution in just one session, but rather to educate Plaintiff to weaknesses in his or her case or strength of the defense case, so that Plaintiff will have to step back and reevaluate his or her position. Less frequently, Defendant uses the first session to underscore how difficult it will be for Plaintiff should the case proceed to trial and to make it clear that nothing more than nuisance value will ever be offered. Typically, however, the goal of a mediation is to resolve the case on the best terms possible, and if not at that session, to place the case in a better posture for future resolution. Assuming this is true, the odds of achieving a successful mediation increase by using a mediator experienced in employment litigation and applicable laws relating to the issues at hand.While a mediator doesn’t necessarily place a value on the case, а complete understanding of employment law may affect the mediator’s view of the case and what the mediator communicates to Plaintiff’s team, beyond mere numbers. More importantly, it affords the opportunity to convey to Plaintiff and Plaintiff’s attorney weaknesses in their case which they may not appreciate. In those instances where the mediator is not totally conversant in employment law, it is imperative that the mediation brief fully outline your position and the law. This will allow the mediator to be armed with the necessary data in order to change your adversary’s mindset. While views may differ, I would also suggest that the information in the mediation brief be communicated to Plaintiff’s counsel, so that counsel will have an opportunity to digest this information and confer with the client prior to the session. This is especially important in those instances where Plaintiff’s counsel is inexperienced in this area of the law. If there is factual information that is to be kept confidential from Plaintiff, consider filing two separate briefs: one for the mediator and one for Plaintiff. Finally, if a motion for summary judgment isviable, it should be filed in advance of the mediation. At the Mediation Prior to the mediation the defense team will have discussed a best and worst case scenario should the case proceed to trial.The defense team will set goals for the mediation, including upper range for settlement. Likewise, Plaintiff comes into the mediation with a goal and a bottom line. If it happens that the Plaintiff’s bottom line and Defendant’s upper range coincide, or are fairly close, the case will almost always settle. It is where there is a large gap between the two ranges that the work needs to be done. Defendant has both monetary and non-monetary tools at its disposal. If Plaintiff is still an employee, it is particularly important to allow the opportunity to tell his or her story, and that Defendant’s representative listen. It is equally important that Defendant’s representative has a chance to explain the employment actions taken. Often, this is the first time Plaintiff has heard why Defendant did what they did, and may go a long way towards bridging a settlement gap. In doing this, it is important that the “conveyor” of the explanation

Timing is (Almost) Everything Optimizing Results at Mediation: The Plaintiff’s Perspective February 2025 Read the PDF Every lawyer who enters into a mediation has the goal of optimizing the results for the client. The aim of this article is to identify strategies, from the plaintiff’s perspective, to accomplish this goal. The discussion will include suggestions as to the most advantageous time to mediate, and offer approaches to pre-mediation planning and techniques to employ at mediation to position your client to obtain the desired results. When to Mediate Determining when the mediation should occur is important. The answer will often depend on whether you represent the plaintiff or the defendant. As a general principle, in the more complex cases, a mediation that occurs very early on (where very limited discovery has taken place) will only benefit the defendant. Plaintiff ’s counsel will ordinarily have limited information at the early stages of the litigation. This information will include the plaintiff ’s version of the facts, documents available to the plaintiff and perhaps information from witnesses who can be accessed by the plaintiff. There are only two circumstances where an early mediation may be a benefit to plaintiff. The first is when there are no important factual issues in dispute and the only controversy relates to damages. The second is on a low-damages case where you have a need for a resolution as soon as possible because your case has very serious problems. (If this is true, you probably should not have accepted the matter to begin with.) The defense has a clear advantage when it comes to assessing the merits of the case at the early stages. Usually, most of the key witnesses, with the exception of the plaintiff, are available to the defendant. The defense counsel has the opportunity to evaluate the credibility of witnesses, weigh anticipated testimony, and examine documentary evidence in making an initial assessment of the substance of the plaintiff ’s claims, at least as it relates to liability. From the point of view of the defense, the driving force behind asking for an early mediation is generally one of two considerations. The first has to do with the containment of fees and costs, especially in those instances where statutory or contractual attorney fees are recoverable. The second is when defendants know that discovery will reveal significant weaknesses in their case. Counsel for plaintiff should be wary of overtures for an early mediation. Preparing the Mediator and the Opposition for the Mediation In the typical case, both plaintiff and defendant will have enough information before the mediation to enable them to form substantive opinions on the merits and value range. Both sides will have discussed best and worst scenarios should the case proceed to trial. Each will set goals for the mediation. (While there may be monetary and non-monetary goals, the focus here will be on the former.) The plaintiff should have a figure in mind that represents what is believed to be the best that can reasonably be achieved at mediation (the “target”), and an amount which represents the lowest conceivable amount it would take to settle (the “reserve”). Similarly, the defense will have established an amount at which it would like to settle (target) and the maximum amount it would consider paying (reserve). The mediation process requires the lawyers to “bridge the gap” between each party’s reserve and target numbers. The starting point for this occurs before the mediation itself, through the mediation brief. The importance of a good mediation brief cannot be overstated. If there is a desire to keep certain information confidential, that can be done separately, either through a brief, letter, or personal contact with the mediator, but a well-considered brief sent to the mediator and the opposing party is essential. First, it is important for the mediator to have a clear understanding of the salient facts, the law that is involved (especially if the mediator may not be fully conversant with the legal issues at hand) and, if applicable, any settlement discussions to date. Including key documents with the brief is helpful as well. More important in some cases, however, is that this is your opportunity to speak directly not only to the defense lawyer, but to the lawyer’s client as well. (Defense counsel almost always shares the plaintiff ’s mediation brief with the client.) There are times when the client or the carrier’s representative are not fully cognizant of key liability issues or potential case value. They are only aware of the facts and opinions provided to them by the defense lawyer. By virtue of the information contained in your brief, you may be able to bring to light to the true decisionmaker legal or factual issues that have not been considered but that seriously affect the assessment on the merits or value of the case. Where attorney fees are involved, plaintiff ’s counsel can also show how large the attorney fees are and will grow should the case proceed to trial. Make sure that the brief is transmitted to your opposition at least three or four days before the mediation so that its contents can be reviewed and taken into consideration by the defense in determining target and reserve values before you actually mediate. A Joint Session? A decision which plaintiff ’s counsel must make at mediation is whether the plaintiff should at some point be in the same room as the defendant and defendant’s representatives, sharing his or her story. If your client makes a good and likable witness, don’t miss the opportunity to do so. This is particularly important in an era where it is atypical for all parties to be placed in the same room at mediation. In cases that may be driven by emotion, an opportunity for the plaintiff to tell his or her story may be important in achieving a settlement. On the other hand, if you know that your client makes a poor witness, ensure that no unnecessary contact takes place. If plaintiff

In-Person Mediation or Zoom? April 2025 Read the PDF Since the Covid pandemic, virtual mediation via platforms like Zoom has become the dominant method in California, with approximately 75% of mediation now taking place online, but in-person mediation remains the more effective option due to its advantages in human connection, communication, and commitment. In 2020, the practice of mediation underwent its most significant transformation ever. Due to the Covid pandemic and the need for social distancing, virtual mediation provided a solution, enabling parties, attorneys and mediators to continue with efforts to resolve cases despite the opportunity to interact on a face-to-face basis. Now, five years later, virtual platforms such as Zoom have become the preferred (or at least the most used) vehicle for mediation in California. While numbers among mediators vary to a slight degree, it is safe to say that approximately 75% of mediations in California (with some variation depending upon geographical locations) are conducted via Zoom. The reasons for this are understandable: Zoom mediations are cost-effective, time efficient, convenient and offer great flexibility. Notwithstanding, the benefits of in-person mediation clearly outweigh those offered by Zoom. Advantages of Zoom Mediation Zoom mediations do offer actual benefits, most significantly convenience and cost. To begin with, parties and counsel can participate in the mediation from anywhere in the world. This is particularly important where attorneys and clients are geo graphically dispersed. When this occurs, it is often difficult to even schedule a mediation date that accommodates everyone. Costs associated with travel, lodging and attendant attorney time are also important considerations, especially in matters of smaller value where case budgets are limited. At times, even when the parties are in the same geographical area, there is a desire to work with a mediator who is not. This may occur because of a previous relationship or because the mediator has a particular area of specialty in the matter at hand. If the mediator has no intention of traveling, Zoom may be the best option. Finally, there are circumstances where one or more of the parties to the litigation are physically unable to attend. In all of these instances, Zoom is an appropriate alternative. Outside of these logistical reasons for conducting mediation through the Zoom platform, in-person mediation offers the best opportunity for reaching an optimal resolution. Why Should In-Person Mediation be Preferred? The absence of human connection should not be underestimated. Mediation, at its core, is a human process that relies heavily on all types of communication. From the mediator’s standpoint, non-verbal cues such as body language or tone of voice may lend important assistance to enabling critical insight into the parties’ state of mind, allowing a mediator to know when to persevere, back off or reframe an issue. A shifting posture, a deep sigh, a wink of an eye, a pat on the back or other signs of emotion may provide great assistance to not only the mediator, but to all parties, in “reading the room.” In a virtual setting, where parties are watching a computer screen, this becomes much more difficult. Being physically present at mediation has a psychological weight to it. It suggests commitment. A decision-maker who travels from out of town in an attempt to resolve a case shows an investment in the mediation process. In addition, some defense attorneys have noticed that in cases where the decision-maker is a claims adjuster or assigned representatives not fully conversant with the case being mediated, can lower the likelihood that the case will resolve. Being away from distractions that might exist when participating remotely, perhaps from home, office or even in a car, fosters more focus and engagement in the process. It is much easier for the mediator to maintain the energy in the process when all parties are present, even though they may not physically be in the same room. Sometimes, technical problems with virtual mediations can also lead to distractions, which cause parties to lose focus. The structured environment of in-person mediation encourages parties to stay engaged in the process. The immediacy of the in-person mediation seems to make it more likely that participants will make every effort to resolve the conflict while all persons are present and there is no threat of someone just “tuning out.” Virtual mediations make it easier for one of the parties to reject proposals. A sense of being more distant makes it easier for a party to take an intractable stance, without the fear of how that might be interpreted. Finally, there are some cases that may demand in-person mediation. An example of this may be an employment matter where it is important for the plaintiff to express to his employer why he or she was wronged, and for the employer to explain why it took the action to which the plaintiff objected. Trust may be promoted; there are times when the plaintiff and the employer’s representative can even work out non-monetary solutions to the employment problem. When Zoom Might be the Preferred Mediation Forum There are certain situations when Zoom may be the preferred, or only option. For instance, if one or more parties have health issues or are unable to travel for financial reasons, Zoom is the option. Similarly, in a multi-party case with participants throughout the country or internationally, Zoom usually is the preferred alternative. Another example may be a commercial case where the sole issue is monetary, and the mediator’s main role involves exchanging offers and demands. Conclusion In certain contexts, Zoom mediations can be a valuable or even indispensable tool. It should not, however, be the default. Outside of health or logistical considerations, in-person mediation, with the benefits of personal interaction and the ability to make more measured moves by all participants, offers the better alternative. In-person mediation offers a more effective process that is based upon human connection, subtle communication, and the power of presence.