Mediation

Steve Pearl practices an “adaptive” style of mediation, using whatever style is most appropriate at the moment.

“There are times in every mediation when one needs to be more facilitative and other times when one needs to be more evaluative,” he says. “Especially in employment law. There can be plenty of emotion in these cases – on both sides – and the mediator needs to give the parties an opportunity to vent, particularly at the start. And you typically get to a point later in the day when both sides need to hear some objective analysis of where they stand and why settlement makes sense.”

Mr. Pearl does not mince words and does not play devil’s advocate when giving the parties feedback.

“I tell people what I see and I’m just dead honest about it. When I started as a mediator, if one side or the other made a good point, I didn’t want them to know that I thought it was a good point because I thought it would just harden their position. Now, if someone makes a strong argument, I don’t hesitate to tell them and the other side that I agree.

“At the same time, I tell people that they can take what I have to say with a grain of salt. I’m not their judge, or jury, or court of appeal. I’m not a decision-maker in the process. I’m there to help both sides get to a place where it makes good sense to resolve the situation.”

Attorneys who have mediated with Mr. Pearl acknowledge not only his expertise and candor, but also his calm, empathic demeanor and his tenacity. “What I like to be known for as a mediator is not just that I’m patient or that I know the law,” Mr. Pearl says. “I love it that I’m known as a closer and someone who will not give up on a settlement.”

Please limit your brief to ten pages, using no smaller than 11- or 12-point font. You can save space by eliminating employment law basics; you do not need to explain McDonnell-Douglas burden-shifting or include lengthy quotes from the Labor Code.

In discrimination, harassment, and retaliation cases, the good briefs tell a cogent, compelling story. A timeline often helps in these cases. Most of these cases involve numerous individuals (parties and witnesses), and the briefs benefit from a short list of the key actors and their roles, as follows:

• Mr. A: Plaintiff
• Ms. B: Plaintiff’s supervisor
• Mr. C: Defendant’s HR representative
• Ms. D: Sr. Vice President, alleged harasser
• Ms. E: Plaintiff’s co-worker, witnessed (or did not witness) harassment

Please print your brief as a .pdf file (do not print it to paper and then scan it) and email it to Mr. Pearl ([email protected]) and his case manager, Nikki Safavi ([email protected]), at least one week before your mediation.

Exhibits: Please provide only the relevant portions of the relevant documents. For example, in a meal period class action, please provide the employer’s meal period policy. If the policy is in an employee handbook, please do not include the entire handbook. Doing so just makes it more difficult to find the meal period policy.

Please highlight the relevant portions of any exhibits. If the relevant section is on page three of a five-page email chain, or in the fourth paragraph of a two-page policy, be sure to highlight the relevant section.

The following documents typically are not helpful as exhibits: the pleadings; deposition transcripts; discovery requests and responses; papers in support of and opposition to motions for summary judgment / summary adjudication, etc.

In addition to the employer’s policies, the following frequently are helpful in wage and hour cases: meal period waivers; on-duty meal period agreements; time cards, time sheets, DOT logs, and other records of hours worked; wage statements and other documents showing how employees are paid. You do not need to include dozens or hundreds of pages of these documents; an exemplar suffices in most cases.

Calculations: In wage and hour cases, please provide a spreadsheet to show your calculations.

Please compile your exhibits into a single .pdf document, separate from your brief. You do not need to separate the exhibits with pages as you would in a paper brief, but please be sure to bookmark each exhibit. Bookmarks are most useful when they are brief and descriptive, as follows:

• A: Meal Period Policy
• B: On-Duty Meal Period Agreement
• C: Weekly Meal Period Acknowledgment

Or, in a typical individual case:

• A: Non-Discrimination Policy
• B: Signed Employee Handbook Acknowledgment
• C: 3/1/19 Write-up
• D: 5/1/19 PIP
• E: 7/1/19 Termination Notice

Clients should understand that mediation is different from everything else that takes place in the life of a lawsuit.

The most important difference is that the parties are in mediation voluntarily, and they have full control over their own decisions as a result. With the advice of their attorneys, the parties decide what information to exchange, what demands and offers to make, and how to respond to the other side’s moves. Most importantly, they decide whether it makes good business sense for them to resolve the case.

I use the term “good business sense” very intentionally. Employment law cases always involve emotion, identity, and principal. That’s natural. And, at the end of the day, there is a business transaction waiting to happen, in the sense that the plaintiff has a legal claim that he or she would like to sell to the defendant, and the defendant would like to buy its peace. In each room, there will be a price where the transaction makes good business sense, and a price where it does not. And the parties get to decide for themselves where to draw that line.

Court, on the other hand, is set up for other people to make decisions for the parties. Judges, juries, even courts of appeal are all there to make decisions for the parties, but none of them are looking at what makes good business sense for them.