Recently, courts across the country have seen an increase in employment law claims. Given its strict Labor Code and discrimination laws, this trend has been especially prevalent in California. A very high percentage of these employment claims are resolved through the mediation process. Skilled advocates addressing these types of issues can work with their clients to utilize the following best practices in planning, strategy and mediation advocacy in that process.

Part 1 of this article will focus on the early stages of an employment mediation: preparation and planning, valuing the case, considering non-monetary solutions, and the initial presentation of the case through writings and first conferences, joint or otherwise.

  1. Explore your best, worst and most likely alternatives to a negotiated agreement.

Parties should come to a mediation with realistic expectations about what will occur and the need for compromise. This requires advance consultation between the lawyer and the client, preparation and planning. Counsel must learn what their client wants and frankly discuss whether that is realistic. To value the case, each party should explore its’ best, worst and most likely verdict results. Approaches include decision-tree analysis, jury verdict research, mock juries and less formal approaches, impacted by fact developments, witness strengths and weaknesses, motion practice and court rulings, the venue and likely jury panel. This should be done prior to the mediation to avoid making important settlement decisions on the fly.

There are multiple factors that can impact this valuation in employment cases. The economic damages should be subject to calculation, but noneconomic damages including emotional distress and punitive damages are more subjective and subject to dispute. In wage-hour cases, there is often a sharp dispute over whether meal and rest breaks were taken. Another factor is the availability of recovery of attorneys’ fees by the prevailing party. Finally, the cost of prosecution or defense will impact each party’s positions.

Develop three numbers: your opening offer, the likely verdict range and your walk-away number and seek to anticipate your opponent’s likely ranges. Each side’s bargaining range is bounded by its opening offer and its walk-away number. The overlap between the parties’ ranges is the zone of possible agreement. If plaintiff’s walk-away number is higher than defendant’s walk-away number, a negative bargaining range exists. Unless one or both parties recalibrate, in such a case there will not be a settlement.

  1. Take into account non-monetary considerations: apology, reference letter, reinstatement.

 Employment settlements may include non-monetary interest-based concessions. The most common are an apology, a positive or neutral reference letter, or reinstatement. Other possibilities include re-employment in another capacity or extension of the termination date, to enable the vesting of benefits or continuation of health care, or to enable the employee to secure alternative employment. Tuition payments, training or retraining, outplacement assistance, and company stock buy-backs should also be considered.

  1. Create an effective and comprehensive mediation memorandum.

Write a persuasive summary of the claims, facts and law relating to liability, causation, damages and collectability, including a chronology. These should be exchanged. A private letter can be given to the mediator to highlight confidential information, negotiation strategy, client issues or problems. The goal in the exchanged memos should be to tell your client’s story and help the opposing party understand your position and support and thereby assess their risks.

Important documents, employment contracts and policies and e-mails should be included. Describe the evidence regarding alleged discrimination, pretext, retaliation or sexual harassment or underpayment of wages or denial of breaks. Charts, graphics and other visual aids can persuasively summarize chronologies, data or organizational relationships.

Explain the alleged damages and calculations, including unpaid hours, rates, overtime, meal and rest breaks, how alleged errors occurred, lost back and front pay, lost benefits, mitigation, emotional distress, punitive damages, lost commissions, stock options or deferred compensation, including the sales cycle, vesting periods, and contractual protections. Prior settlement demands or offers should be disclosed.

  1. Make the most of your prehearing conference with the mediator.

Increasingly mediators conduct separate prehearing conferences with each party after the exchange of memoranda. Make this your start of the mediation discussions to jump-start the beginning of the in-person sessions. Use your time to tell the mediator about any backstories, obstacles to settlement, issues you perceive with your client and the opposing party, insurance coverage, and how settlement can be achieved.

  1. Prepare yourself and your client for more effective oral presentations in mediation.

Plan client presentations, either for joint session or a private caucus. The clients can best describe the interpersonal or performance issues that preceded the litigation, and how they were impacted, with a level of granularity and emotional detail that cannot be matched by their lawyers. When lawyers describe the facts, they tend to overplay the rhetoric and repeat what they have written in their memoranda. The lawyers’ roles should focus on the application of legal principles to the facts presented by the clients as well as the overall message. A civil, polite approach is advisable. An overly aggressive joint session presentation can easily backfire. Charts, graphics or visual aids are highly effective in such a presentation.

  1. Deal with emotion in the mediation.

Emotions should be expected and are natural in employment litigation. This is a forum for the participants to tell their story, and emotional catharsis can begin a healing process for the participants. If in a joint session, it is important for the opposing party to listen respectfully, with no overt negative responses, verbal or nonverbal. Many employers do not want their personnel to make emotional or negative counter-presentations in joint session, as they may be counter-productive. Depending on the circumstances, the parties may wish to look for an opportunity later in the mediation for the employee and an employer representative to have a face-to-face meeting to explain their feelings and actions and, as appropriate, to offer an apology. When an apology is heartfelt and spontaneous it can help bring emotional closure to the events.

Part 2 of this article will follow in a subsequent post.



San Jose, California

Please join us for the national webcast of “Effective Mediation of Technology Litigation” involving trade secret misappropriation and patent infringement on December 12, 2018 from 12-2 p.m. PST. You may register at the following link:  It will also be presented live at the Santa Clara County Bar Association Seminar & Conference Center in San Jose, CA, and will be available On Demand thereafter.

I am serving as the Program Chair and Moderator of this interactive program presentation. A highly experienced panel of experienced Silicon Valley patent and trade secret litigators, mediators and a federal judge will focus on best practices in the timing, case assessment, presentations, settlement moves and final agreements and documentation in mediations. The panel consists of Hon. Susan van Keulen, United State Magistrate Judge, Northern District of California; Karen Boyd of Turner Boyd; Shella Deen of Hoge Fenton; Sara Petersen Graves of Bergeson LLP; and John V. Picone III of Hopkins Carley.

Panel topics include:

•  When is the right time to mediate trade secret and patent infringement cases?

•  Case assessment of liability and valuation of various damages scenarios

•  Who should attend and dealing with attorneys’ eyes only protective orders?

•  Effective mediation memoranda, pre-hearing conferences and oral presentations at the mediation

•  Opening offers and settlement moves, avoiding or breaking impasse and closing the deal

•  Final settlement agreements and documentation: monetary payment calculations, potential licensing terms, business relationships, equitable remedies and release versus covenant not to sue

Please join us live or on the webcast or on demand. You may register at the following link:

Frank Burke

ADR Services, Inc.




Welcome! ADR & Conflict Management Strategies at will  offer ideas on alternative dispute resolution best practices in planning, strategy and advocacy in the full spectrum of conflict resolution methods, from early conflict resolution before litigation or arbitration has begun, early dispute resolution in the litigation process, mediation, and arbitration. Please visit the blog  and sign up to receive blog posts via e-mail.

The target audience for this blog includes plaintiff and defense attorneys and inside counsel and the parties who participate in ADR and conflict management processes prior to and during litigation and arbitration. In addition, the blog will focus on consultants, business owners and employees involved in other conflict management situations or processes who want to utilize principles and techniques of negotiation and mediation to resolve such issues.

Just as we discuss the strategies for the various phases of litigation, now we are discussing the strategies for the various phases of mediation and other forms of conflict resolution. That will be our focus in this blog. Litigators have historically received trial practice training based on methods steeped in history but ADR training and methods are still evolving. We have viewed the litigation and arbitration processes as early (framing the claims), middle (discovery concerning the claims) and late (the trial or hearing through the verdict or arbitration award). Likewise, we are now viewing the mediation process as early (from mediator selection to presenting the case through writings and first conferences, joint or otherwise), middle (first offers through early negotiation rounds) and late (closing gaps, breaking impasse, reaching agreement and documenting it).

My strategy suggestions are based upon a lengthy 42 year career as a business trial lawyer representing plaintiffs and defendants in federal and state courts in 26 states, China and Canada. More recently I am serving as a busy mediator and arbitrator in a wide spectrum of cases experiencing a variety of party strategies and techniques. As mediation and arbitration have evolved and developed, best practices are becoming clearer and there is less need for parties and counsel to proceed solely by trial and error.

We will discuss ADR and conflict resolution across a wide variety of subject areas, from business, contract and UCC disputes to real estate, leasing, IP, trade secrets, technology, employment, personal injury, professional malpractice (legal and accounting), antitrust, securities and false claims and whistleblower matters, corporate governance, business divorces, partnership dissolutions and family business and tenants in common disputes.

I hope to include Guest Posts by trusted colleagues covering content within the scope of this blog. The blog site offers the ability of recipients to offer feedback and comments. I look forward to discussing ideas and best practices via e-mail or through the comments section on the blog site.

This blog will appear in the industry leading LexBlog network within the Corporate and Commercial channel. Please visit the blog at and sign up to receive blog posts via e-mail. Thank you for reading and visiting and advancing the dialogue.