Skills for Preparation & Effective Representation in Mediation: Employment Produced for Lawline By: Andrea M. Paparella, Esq. The Law Office of Andrea Paparella PLLC Louis Pechman, Esq. Pechman Law Group PLLC Simeon H. Baum, Esq. Resolve Mediation Services, Inc. www.mediators.com

How To Decide Whether, When, And Where To Mediate:

Should You Mediate?

Pros: Avoid: The Risk Of Losing; Spending Fees, Costs, & Time Gain A Sense Of Winning Give Your Client A Voice / A Quasi “Day In Court” Develop Your Case Prepare For Litigation, Depositions, & Trial Mediator Explains Weakness To Client & Strengths To Opposing Side

Cons: Psychological Harm Of Believing Settlement Is Going To Happen Could Delay Advancing Your Case Client Disappointment Client Loss Of Energy Time & Money Spent

Types of Employment Matters In Mediation: Discrimination Wage & Hour Claims

When To Mediate: Before Filing After Filing With The EEOC After Filing In Court Pre-Depositions

When To Mediate Continued: Post-Depositions / Pre-Summary Judgment Briefing Post Summary Judgment Briefing / Pre-Summary Judgment Decision Post Summary Judgment Decision / Pre- Significant Trial Prep Just Before Trial

Where To Mediate: Private Mediation EEOC SDNY Mediation Program Local Civil Rule 83.9 Settlement Conference Before A Judge

Mediator Selection: Mediator Style Facilitative Evaluative Directive Formative Protean Judge

How To Prepare For Mediation:

Lawyer Preparation: Explain The Mediation Process To Your Client Find Out Who Is Attending From The Other Side Mediation Statements & Briefs Damages Analysis Liability Discussion Facts Hot Docs Cases

Lawyer Preparation Continued: PowerPoint Presentation Determining Who Should Speak Which Lawyer? Client? Client’s Spouse, Family Member, Friend, Mental Health Services Provider, Fact Witnesses? Preparing For Everyone To Speak Three Client Prep Sessions

Lawyer Preparation Continued: Pre-Mediation Calls With Opposing Counsel And The Mediator Pre-Settlement Financial Planning Talk To Tax Advisors Make Demands / Offers Monetary Non-monetary

Client Preparation Client Speaking About The Facts Not The Numbers Client Pulling All Documents That Could Possibly Relate To The Case Together Spouse / Family Member / Friend Speaking Managing Expectations Of Client If Case Doesn’t Settle – Still Got Valuable Information Practice For Deposition

How To Behave At Mediation:

You, The Lawyer: Professionally Passionately Persuasively Shake Hands & Say Hello & Good-Bye Passionately Show You Believe In Your Case Persuasively Know The Law Know Your Facts Know Your Hot Docs

Your Client: Professionally Passionately Persuasively Shake Hands & Say Hello & Good-Bye Passionately Avoid: Crying; Yelling; & Grimacing Persuasively Admit The Bad Facts Focus On The Important Good Facts

Openings: Manner of Openings and Who Speaks: Style of Opening Client Council

Joint Sessions & Caucuses: Benefits To Claimant Benefits Respondent

Best use of Caucuses: Go Over The Facts Therapeutic To Talk Employ Different Kinds: Lawyers Only Clients Only Return to Joint Session

How Best To use the mediator: Transforms From Litigation Battle to Productive Discussion Sympathetic Ear for Claimant Translator Negotiation Coach Keeps Everyone Bargaining

Tips to Bargain: Thoughts On How Best to Bargain Making Proposals Letting The Numbers Talk Reading Numbers From Other Side Numbers: Large Or Small Language That Should Be Employed

Towards the End of Mediation: Time to Ask For: Letters Of Reference Memberships Possibility Of Maintaining Employment Non-Disparagement Confidentiality Indemnity

Towards the End of Mediation Continued: How To Allocate Back-Pay Form W-9 Emotional Distress & Other Categories Of Damages Form 1099 Attorneys’ Fees & Costs

What To Do After A Settlement Agreement Is Reached: Finalize The Settlement Agreement ASAP EEOC Withdrawal Tell The Court 30 Day Order With Court Approval

And What To Do When A Settlement Agreement Is Not Reached At Mediation: Keep Trying—Post Mediation Settlement Efforts Incorporate Mediator’s Proposals Reflect On What You Learned At The Mediation And Incorporate It Into Your Litigation Strategy