San Francisco Employment Law Firm Blog

One of the common mistakes claimants make is coming to the mediation with a set, firm "floor" settlement figure in their mind. This approach has seriously downside. First and foremost, mediation is a process that requires at least some compromise from both parties. Statistically, most cases that go to mediation settle, but it is also true that to be successful at mediation you have to take less than you were initially willing or give more than you initially wanted.

Being open minded about the settlement of your case during the mediation is particularly important in wrongful termination and other employment cases, as these are particularly challenging cases, in which liability is almost always an issue. Unlike in other cases, such as car accident, in which it's typically clear and uncontested whose fault the accident is, and the only questions is how much the innocent victim should recover in damages, discrimination, retaliation, and other wrongful termination claims require proving motive. Direct evidence of illegal motive by the employer, such as open admission of guilt, is almost never available, and the aggrieved employee has to rely on circumstantial evidence to prove his/her case. In addition, the employer often have defenses that are hard to disprove, which include misconduct, insubordination and poor performance, which are inherently subjective and so easy for the employer to argue, unless you have a stellar, long-standing performance record.

The above and other factors all suggest that it is in your best interest to be open minded about the settlement value of your case at a mediation. It does not mean that you have to sell short a good case with compelling facts and reliable witnesses, but it does mean that you should listen carefully to the arguments of everyone else who shows up at mediation about the strengths and the weaknesses of your case, as all of the other present at the proceedings likely have much more experience in employment law and with trials and juries than you do.

Yesterday, I attended my client's mediation at EEOC (Equal Employment Opportunity Commission) office in San Francisco. In many ways, the proceedings were very similar to a typical private mediation of an employment case. However, I thought there were a few important advantages, at least in this particular case, over private mediation.

1. The EEOC mediation service is free. Mediation can be an expensive proceeding. Some of the mediators in the Bay Area who are know to be effective in resolving employment cases charge between $5,000 and $7,000 per day for their services. While paying half of this fee may be worthwhile for the Plaintiff, some employers use this expense as an additional way to pressure Plaintiff into settlement. They realize that consciously or subconsciously, the employee and his/her counsel who are naturally are not as well funded as the employer will want to make their expense worthwhile and would be more frustrated if the case doesn't settle at the end of the day, which means the aggrieved employee and his/her lawyer will likely be more flexible and amenable to a lower settlement. When the mediation is free, Plaintiff is under no pressure to accept settlement offer which seems to be clearly not fair.

2. At least some EEOC mediators seem to insist on a joint session before separating the parties into different rooms. Many private mediators believe that traditional join sessions, where both parties, their counsel and the mediator sit together and talk about the case are counter-productive and are more likely to hurt and help the process. While this might be true, especially if either of the parties or both or angry and each other and have a hard time communicating with each other without losing their temper, if respectful discussion is possible and the employee can keep his emotions under control, joint session should definitely be taken advantage of. First, it saves a lot of time, allowing both parties to nail down the main issues in their case and immediately see where the opposite side stands on the same issue. Some of the factual disputes, discrepancies and misunderstandings about the events that lead to the EEOC complaint can be resolved right then and there. Further, if the employer is represented by someone who has never met the aggrieved employee, it shows both parties the actual "human" side of the opposing party. This is especially helpful if the employer's representative and the employee are calm and likable people, who are able to respect the difference in opinion when looking at the same issue from a different angle, which is very common in most motive-related cases, such as discrimination and retaliation.

3. EEOC Mediators are Experienced Employment Law Attorneys. Employment law is a highly specialized and constantly evolving area of law. A mediator who doesn't know employment law, who doesn't have experience working on either side of the wrongful termination claims, and who doesn't keep up with the employment law developments is not going to be nearly as persuasive in trying to bring both parties to a compromise. EEOC seems to be quite picky when it comes to mediators, and the ones I had an opportunity to work with are quite competent.