Views from a Mediator

Published February 21, 2014

View from a Mediator: Mediation and the Summary Judgment

The dilemma of the summary judgment is something I see often in mediating employment cases. What am I talking about? Defense lawyers usually file a summary judgment. The question is, "Do you go to mediation before it is ruled upon, or not?"

I always encourage lawyers to go to mediation as soon as possible. Employment cases aren't cheap. They are easier to resolve the less money both sides have in the case. With that said, there are some cases that need some discovery before the parties can properly evaluate their case. Without this discovery, it is hard to decide what the case is worth.

Let's assume that some discovery has been done and the defense has filed a summary judgment. Is it time to go to mediation? The threat of a pending summary judgment can promote settlement. The thought may be, "Better to settle now vs. getting nothing if the summary judgment gets granted."

But what happens if you go to mediation and you don't settle and afterwards the summary judgment is denied? We know the price tag goes up, but something else can happen that is just as problematic. What can happen is this – not only does the monetary price tag go up, but now there is an expensive emotional price tag.

Translation: The plaintiff is even angrier Emotions prevent rational thinking.

Emotions run high when someone loses their job. We associate our self-worth with our jobs so it is no wonder that egos and emotions get so wrapped up in termination cases.

This is a delicate balance. If you feel strongly about winning your summary judgment, then go to mediation and use it as leverage. However, if your chances are so-so, think twice. Don't let the pending summary judgment color your settlement offers.

I see what happens with emotional plaintiffs. If you go to mediation and strongly argue (i.e. hit the plaintiff over the head with the threat of a summary judgment) and you later lose the summary judgment, you may intensified the emotions. Now instead of a hostile and mad plaintiff, there is a "about to explode atom bomb" MAD plaintiff. The plaintiff's anger now approaches a nuclear level. A case that should settle, may not, because the plaintiff is angry and upset. Plaintiff's attorneys can help diffuse emotions but they can only do so much. A pissed off plaintiff is a dangerous thing to settlement.

My advice is this: If you feel confident about your summary judgment, mediate. If you aren't that confident, don't' wait until after the summary judgment is denied, to try to settle in earnest.

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