Firm Articles and Story Blog

The Benefits of Early Mediation - Employment Law Edition

Posted by Caleb A. Miller | Sep 16, 2022 | 0 Comments

The Founding Members of Miller Wilmers APC, Caleb Miller and Justin Wilmers, started our careers defending companies of every size from lawsuits against their employees and consumers. On the employment side, you learn quickly that the employer holds all of the cards. All of the documents that may evidence any claim for unpaid wages are likely found in the time sheets and wage statements that an employee may have never even seen before. Witnesses to discrimination, harassment or retaliation may still be employees of the Company, or even managers within the Company. In short, the Company has more information about the case then the employee bringing the case does almost by default. This differs from personal injury cases in which the most relevant documents and witnesses can be held by either party, the police, the city surveillance, pedestrians, doctors, therapists and many more potential witnesses. 

What is Mediation?

Mediation is an alternative dispute resolution process where both parties submit their positions to a third party neutral evaluator called the mediator. The mediator cannot make a ruling, and the entire process is voluntary between the parties; meaning you can walk away at any time. The mediator is likely an attorney with extensive experience in the area of law for which this dispute lies, or a former judge for the same. In mediation, the mediator will spend the first couple hours speaking to the individuals involved to get a first hand sense of what the case is about. Of course the mediator will have already read the briefs prepared by your attorneys so they have an understanding of the claims but remember, there are two sides to every story. 

After gathering the information, the mediator will shuttle between the two parties, who are likely separated in different rooms, and attempt to bring reason to the parties by letting them know the strengths and weaknesses of their case. The Mediator, often a judge or experienced litigator, will give their best estimate as to how a case like this will play out down the line. That employer who said the case is worth $0, and ignores every argument your attorney makes for you, may suddenly feel different when a former judge says this will not go the way they think it will go. The same happens to the employee when the mediator tells them that there are certain things that need to be proven here that are simply not apparent given this set of facts. As the parties gain a deeper understanding of one another through the third party non-bias evaluator, they begin to offer settlement numbers that get increasingly closer as the day goes on until finally - settlement. 

What is Early Mediation?

Early Mediation is when the parties choose to explore mediation within the first year the case is active, or even prior to discovery. This is best when the facts are supported by documentation that has already been produced or provided by the parties. 

The Benefits of Early Mediation
  • Identify the Strengths and Weaknesses of Your Case

Not just your case, identify the strengths and weaknesses of your opponent's case as well. This information will allow you to make strong procedural decisions before taking on the financial and emotional burdens of escalating the case. While every Plaintiff believes their case is an absolute grand slam, remember that the employer does have their own story to tell. What you may have perceived as inaction to your complaints in the workplace, there may have been full disciplinary procedures, suspensions or protections the employer afforded you that you were unaware of. You may have complained to your coworker about an injustice in the workplace, but learn that the coworker never informed the company, and come to think of it, neither did you. These could be problems. Early Mediation will also help you identify the common ground in a case. 

  • Flexibility

Mediation offers a flexible approach to the logistics of cases. this includes selecting your mediator, choosing a date, venue and time; avoiding unnecessary time away from work or other travel expenses. The mediation itself can be tailored however you like it to be. If you would like an opportunity to speak to the other party directly, it can happen in mediation and nothing said in mediation can be used in court. We will get to the last part shortly.  

  • Savings of Costs and Time

Successful cases can avoid litigation, which can include attorneys fees, court costs and other expenses. From the employee perspective, our firm, like many Los Angeles Plaintiff's firms, operate on contingency. The old "You don't pay unless we win." But what does that mean? It means your attorney will front the costs of the suit, but they will get that money back from the award, as well at the agreed upon attorneys fees. For example, if in early mediation there have been no costs and we can settle today for $75,000.00, the attorney takes their fee % and that is the end of it. If the costs ended at $3,000.00 for mediation, with a typical 33% fee for the attorney, you will find you have kept $47,000.00 for your self. Not bad, but lets say you were really hoping for a 6-figure settlement and are willing to push to the end of litigation to get it. 

Lets say your attorney files the case, completes a few rounds of discovery and deposes many relevant witnesses, costs for the attorney can easily pass the $50,000.00 threshold. If discovery brought the value of the case to $150,000.00 where the case eventually settles. That is double the amount of settlement available to you then in the first example. However, the attorney will subtract their fees from the total amount first ($50,000), then their costs ($50,000), leaving just $50,000.00 for you in the end.  You may have gotten the 6-figure settlement you wanted, but the end result is nearly identical to what you would have achieved in early mediation, but it took two plus years to get it. The present value of $47,000.00 is far greater than the future value of $50,000.00, especially that far out. Saving costs and times definitely matters in the long run. 

  • Safeguard your Professional Relationships 

Early Resolution also may prevent the inevitable attacks and embarrassment parties face as discovery proceeds. From the employee perspective, understand that the employer is going to attempt to attack your character in any way they can, leading to a very uncomfortable deposition when all of your dirty laundry is aired in front of you. Your lawyer may attempt to do the same thing to those managers, supervisors or other bad actors you alleged in your complaint. Not only are those relationships likely destroyed, but so are the relationships of people within the company who felt they had to take sides. You can almost count on it. With early mediation, you may be able to avoid that entire battle. 

  •  It Is Just Business

As we discussed in the Savings of Costs and Time portion, mediation creates a very business like approach to resolution where litigation is much more personal and emotional. The mediator is not only informing both sides of the strengths and weaknesses of their case, but assisting both parties in doing the "math" of reasonable resolution. In early mediation, not only have you saved on your attorneys costs, but the Company, who pays their attorney by the hour, likely has not invested too much into this case either. What does that mean? If you have a case worth anything, the employer understands that if there is no deal today, they are still on the hooks for the hundreds of hours their attorneys are going to bill to get them across the finish line. The employer is on the hook for their own costs to get to trial. If there is a chance the employee is going to win, the employer is on the hook for your own attorney's fees as well. 

The mediator will help the employer make a difficult business decision. That is the value of settlement today, versus the risk of losing tomorrow, where the biggest winners in the case will be the attorneys and nobody else. 

By that same theory, the employee will have to understand that this is also a business decision. In early mediation, chances are you may in fact get a better settlement if you push to the future. But at what cost? The literal financial costs your attorneys are investing into the case of course; but what about the attacks on your character, digging into your personal life. The destroyed relationships between not only you and the Company but the people who had to take sides. Well, this is a business decision. 

The Cons of Early Mediation

The downside is the lack of information. While an attorney specializes in discovering all of the relevant information to bring the best case forward, there is some information you simply did not tell them that they would only learn in discovery. Why wouldn't you tell them? Well, maybe you didn't realize it was relevant. It is possible that the attorney finds something that is even greater than the claims you are making, that will be added to an amended complaint. Early Mediation stops the investigation early to get a deal done. There is the potential that money is being left on the table, it is for this reason that early mediation should really be explored when the facts are already backed by documentation, not before. 

Miller Wilmers APC Specializes in Mediation of Disputes

Having received the Certificate of Dispute Resolution from the #1 ranked disputed resolution school in the world, It is my goal to ensure that we are exploring early mediation only when it makes sense, and nets you the highest amount we can get as early as possible. Early mediation is not appropriate for every single case, but it can be one powerful weapon to get you from claim to paid in a matter of months. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Avvo - Rate your Lawyer. Get Free Legal Advice.