Rose Mediation's ADR Newsletter - August 2013

Ken Rose is the founder and President of Rose Mediation [www.rosemediation.us]. Through Rose Mediation, Ken serves as mediator of legal disputes throughout California and adjoining States, most particularly employment law matters, including wrongful termination, wage and hour, class actions, breach of contract, discrimination, harassment, retaliation, and misappropriation of trade secrets/unfair competition cases.

I trust you are having a fun summer, and have taken some time off to relax with family and friends. Fortunately, these past two months I've been able to mix in visits to Florida, Colorado, and soon New York, with my mediation and other professional responsibilities. This is the third issue of Rose Mediation's ADR Newsletter. I welcome your comments. Contact me to discuss any cases you believe can be resolved through mediation. I handle matters throughout California and adjoining States.

Sincerely,

Look to The Mediator For A Second Opinion On The Value Of Your Employment Case

"Be a good listener. Your ears will never get you in trouble." Frank Tyger

For counsel approaching an employment dispute mediation, preparation focuses on valuing the case for settlement and getting the client on board. There is no precise formula for valuing a case for settlement purposes. It's more an art than a science. But, the experienced litigator can make informed judgments about settlement value when counsel has (1) amassed enough relevant information about the real facts and understands the law, (2) developed a good sense of the trial skills of opposing counsel, (3) a reasonable feel for how well the client and other important witnesses will come across to the jury, (4) thought through the path the case will likely follow should there not be a negotiated settlement at mediation, and (5) been able to exercise objectivity in this process.

To derive a realistic settlement value range in advance of the mediation, counsel must try to recognize the good, the bad and the ugly about their case. Counsel must also consider that compromise is a settlement of differences in which each side makes concessions. Factoring in the risks if the case goes to a trial helps counsel determine the settlement value for their clients.

In litigation, counsel and their clients are continuously evaluating something that is hard to gauge—their chances of winning the lawsuit. No case is a sure winner. Every jury trial contains uncertainties. There is no guarantee that the Judge's in limine and other evidentiary rulings will go your way, or how the Judge will rule on disputed proposed jury instructions. There is no certainty who will be on the jury or how the jury will react to the evidence presented, how the facts will come in, how effectively the experts will testify, how competently opposing counsel tries the case, etc.

Once the mediation gets going, counsel should be open to obtaining a "second opinion" on the value of their case from the Mediator. Counsel should be receptive to reevaluating the strength and bottom line value of their case based on the Mediator's input. Presumably, the parties have selected a Mediator they both trust. Using the Mediator primarily as a messenger to communicate offers is a waste of money and time. The Mediator does not have a "horse in the race" and the Mediator's goal is to facilitate a resolution. The Mediator can be a weather vane, a sounding board, that best friend who always has been straightforward with you, and the devil's advocate--all rolled into one.

Moreover, the Mediator has the advantage of looking at the case from a different, and arguably more reliable, perspective than that of either counsel. When counsel were retained their "first impressions" may have been skewed because most of the information they looked at came via their own client (and before any formal discovery). The Mediator's "first impressions" are based on a far more complete picture of the case than counsel had when first retained. The Mediator enters the case with a "fresh pair of eyes," much like a Judge or juror. Generally, the Mediator will know little about the case until receiving the parties' position statements. But, well drafted position statements provide the Mediator with a fairly thorough statement of the disputed and undisputed facts, as well as the parties' legal theories.

If the Mediator's view is that both sides have reasonably evaluated the case and the valuation gap is not inordinate, the Mediator will signal to each party that it is on the right track toward a resolution. With the help of the Mediator, the parties can make logical, well thought out, moves in the negotiations. More often than not, these mediations will conclude with a settlement. The end result may have the company paying more than it planned on and the plaintiff employee accepting less than what he or she was looking to receive. But then the lawsuit is over and the parties can go their separate ways.

It's no mystery that a dominating factor that causes impasse at mediations is the very real differences in case assessment and monetary valuation that parties have made before they arrive at the session. The Mediator will make best efforts to objectively evaluate whether the parties' differences are well-grounded or whether one (or both) parties is misjudging the value of the case.

If the Mediator believes that the case turns on equally plausible views of the crucial facts or legal theories in dispute and the valuation differential is substantial, the Mediator is not going to misrepresent his or her assessment of the parties' positions as a ploy to force a settlement. While Mediators want to settle cases, we realize that realistic assessments come with rational constraints on settlement. Certainly the Mediator should explore whether there are exigent circumstances motivating either party to settle --such as the defendant needs to settle the case before its upcoming corporate merger, or the plaintiff is in desperate financial straits and needs money now. But, these "toss up" cases, where lots of dollars are at stake, are the ones that probably should be presented to a jury.

If the Mediator believes one party is unreasonable or is illogical in its offers or demands, the Mediator can break down these barriers provided this party's counsel does not lose sight of why he or she agreed to the selection of that Mediator. Once an advocate is absorbed into a case, objectivity may not come that easily, and it may be difficult to listen to a Mediator's point of view with which counsel disagrees. However, a Mediator familiar with the subject matter may help re-focus unrealistic case perceptions. In these situations, the Mediator's candid evaluation might cause a party and its counsel to recognize that its in their best interests to rethink their entrenched position. Counsel should be mindful that the Mediator may be contributing important and helpful information that could make reaching settlement for the client more likely than not.

That is not to say that Mediator evaluations alone necessarily settle cases. Rather cases settle at mediation when, with input and guidance from the Mediator, each litigant decides that the risk and cost of further litigation outweighs the parties' differences about the merits. But, counsel and their clients that disregard the reality checks offered by the Mediator are unlikely to fully benefit from the mediation process.