1. 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.

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

3. Should You Mediate?

4. 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

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

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

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

8. 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

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

10. Mediator Selection: Mediator Style Facilitative Evaluative Directive
Formative
Protean
Judge

11. How To Prepare For Mediation:

12. 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

13. 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

14. 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

15. 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

16. How To Behave At Mediation:

17. 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

18. 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

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

20. Joint Sessions & Caucuses:
Benefits To Claimant
Benefits Respondent

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

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

23. 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

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

25. 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

26. 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

27. 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