Item: Winer, Burritt & Scott, LLP
Rating: 5
Author: Stacey Johnson

John D. Winer, San Francisco

1. SEXUAL HARASSMENT.

A. What is Sexual Harassment.

Both California and Federal law generally define sexual harassment as unwanted sexual conduct of two main types: quid pro quo harassment and hostile environment harassment.

Quid pro quo harassment occurs when employment is conditioned, expressly or impliedly, on the submission to unwelcome sexual advances (such as a supervisor saying “If you want to keep your job, you’d better have sex with me”).

The more frequent type of sexual harassment, hostile environment harassment, generally occurs when the employee’s work environment is made hostile or abusive by sexual misconduct.

Under the Fair Employment and Housing Act (FEHA), harassment includes gender harassment or sex-based harassment, i.e., conduct that shows hostility based on gender even though the conduct itself was not sexual. An example of this type of harassment would be a supervisor’s hostile comments that “women do not belong in the work place.”

Sexual harassment has been found to include:

sexual favors, including unwanted sexual advances or propositions;
verbal conduct, including epithets, slurs or derogatory comments and comments about a person’s body, appearance or sexual activity;
physical conduct, including assault, impeding or blocking movement, or any physical interference with normal work or movement; and
visual harassment, including leering looks, offensive gestures or derogatory posters, cartoons or drawings.

B. Under What Settings Can Sexual Harassment Occur.

Under California law, sexual harassment claims generally arise out of either an employment situation or when there is a business, service or professional relationship between the victim and the perpetrator. Examples of professional relationships include therapist and patients, attorneys and clients, and doctors and patients. (See California Civil Code section 51.9.)

C. An Employer’s Duty Under Sexual Harassment Laws.

An employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. (California Government Code section 12940(i).)

If harassment has occurred, the employer has a duty to take measures to not only change the harasser’s behavior, but to prevent potential harassers from unlawful conduct.

Reasonable steps to prevent discrimination and harassment from occurring include:

affirmatively raising the issue of harassment;
expressing strong disapproval of harassment;
developing appropriate sanctions for harassment;
informing employees of their rights and instructing them to report harassment;
developing methods to sensitize all employees to behavioral indicators of sexual harassment and the gravity of its consequences.

D. Retaliation Prohibited.

It is an unlawful employment practice under the Fair Employment and Housing Act (FEHA) to retaliate against anyone who has opposed practices proscribed by FEHA, i.e., sexual harassment and/or discrimination, or has filed a complaint, testified or assisted in any proceeding under FEHA. Thus, employees are protected from retaliation if they complain about harassment and/or discrimination.

E. The Requirement of Bringing an Administrative Claim.

Before pursuing a civil suit under California law, a plaintiff must first exhaust his or her administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC).

It is the important that the complaint specifically identify the discrimination and the perpetrators of the discrimination.

If an employee files with the Department of Fair Employment and Housing, he or she can ask the agency to not investigate the claim but, rather, simply immediately a right-to-sue letter.

F. Strict Liability in Cases of Sexual Harassment by a Supervisor.

Under California law, if a supervisor sexually harasses an employee under his or her supervision and/or retaliates against an employee under his or her supervision, there is grounds for a strict liability claim. In other words, if a plaintiff can prove that the harassment occurred, the company is automatically liable for damages awarded against the supervisor, without the employee having to prove the company was negligent or even did something wrong.

The employer’s strict liability arises from FEHA regardless of the employer’s own lack of knowledge or it’s attempts to remedy a sexual harassment situation.

Thus, any time an employee can prove that sexual harassment by a supervisor occurred, the employee will win if he or she can prove the harassment caused damages, and will be entitled to an attorney fee award. (See “M” below.)

G. Responsibility of an Employer for Sexual Harassment by a Co-Worker.

The employer is liable for harassment by a co-worker, customer or independent contractor only if the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action. (Government Code section 12940(h)(1).)

Thus, in cases in which sexual harassment is perpetrated by a co-worker, it is essential that the employee proves that the employer knew that the perpetrator had harassed the plaintiff or other employees before the acts complained of by the plaintiff and took inadequate steps to prevent it or, in the alternative, the employer should have known of the prior harassing behavior.

H. Who Is Protected From Sexual Harassment.

Under California law, the Fair Employment and Housing Act (FEHA) protects both male and female employees, applicants for employment and independent contractors. It also protects an employee or an applicant from harassment by a person of the same sex. It applies to all employees of any employer.

I. Severe and Pervasive Standard.

To prevail in a sexual harassment claim, the plaintiff must prove that the sexual harassment was severe or pervasive enough to alter working conditions and to create an abusive environment.

A plaintiff must show that a reasonable person would have considered the conduct severe or pervasive. If the plaintiff is a female, the fact finder uses a reasonable woman standard; if the plaintiff is male, the fact finder uses a reasonable man standard.

In addition, the plaintiff must demonstrate that he or she found the conduct sufficiently severe or pervasive to interfere with the work environment.

Whether or not conduct is severe or pervasive must be determined from the totality of the circumstances. Such circumstances include:

the frequency of the conduct;
the severity of the conduct;
whether the conduct was physically threatening or humiliating or was a mere offensive utterance;
whether the conduct reasonably interfered with the plaintiff’s work performance, although the plaintiff need not show that she or he could not perform the job.

Remember, the standard is severe or pervasive. The more severe the conduct, i.d., sexual touching of genitals, the less it has to be pervasive (i.e., occurring frequently).

J. When the Harassment Is Not Directed at the Plaintiff Personally.

If sexual harassment permeates the plaintiff’s work environment, she or he may have a claim even if the harassing conduct is not directed at the plaintiff personally, but occurs in the plaintiff’s presence.

K. The Statute of Limitations.

Generally speaking, a plaintiff must file a complaint with the Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC) within one year of the harassing conduct. A plaintiff must file a claim with one of the governing entities before filing a lawsuit.

If the sexual harassment has occurred over a long period of time, the plaintiff can sometimes rely on the continuing violation doctrine. Under this doctrine, if it is found to apply, the sexual harassment complaint is timely if any of the discriminatory practices continues into the one-year limitations period.

L. Damages Recoverable in Sexual Harassment Cases.

If an employee sues under California law, he or she is entitled to recover damages for past and future medical and psychiatric expenses, past and future wage loss, damages for emotional distress and punitive damages.

In a sexual harassment case, a plaintiff does not need to undergo psychiatric or psychological treatment in order to recover damage for emotional distress.

To recover punitive damages, i.e., damages to punish the defendant employer, a plaintiff must prove:

that the employer hired or retained the harassing individual with knowledge of his or her unfitness for the position and in conscious disregard of other’s rights for safety;
authorized or ratified the wrongful conduct; or
was personally guilty of oppression, fraud or malice.

If the employer is a corporation, its knowledge, conscious disregard, authorization or act of oppression, fraud or malice must be on the part of a corporate officer, director or managing agent. A managing agent is a person who exercises substantial independent authority and judgment over decisions that ultimately determine corporate policy.

A plaintiff can prove that an employer’s ratification for purposes of liability for punitive damage by establishing:

the employer adopted or approved of the action of the harasser;
it can be inferred from the employer’s failure, after being informed of the harassment, that it ratified the conduct of the harasser by such evidence as a failure to fully investigate and punish the harasser.

M. Recovery for Attorneys Fees.

If the plaintiff can prove harassment/discrimination, he or she is entitled to recover his or her attorneys fees as an element of damages. This is a very important aspect of the law because frequently the award for attorneys fees will be greater than the actual damage award to the employee. California law allows recovery for attorneys fees greater than the amount of actual damages because it recognizes that it important that attorneys have an incentive to handle sexual harassment and discrimination cases and that legitimate victims of harassment and discrimination would be unable to seek legal redress if attorneys fees were not awarded on top of a damage award.

N. Strategy Considerations for Plaintiff Attorneys and Plaintiff in a Sexual Harassment Case.

Sexual harassment cases have to be built. They do not land in an attorney’s office with a substantial inherent value. Rarely will a sexual harassment victim have undergone a million dollar “trauma” and just as rarely will a potential plaintiff have a million dollar “injury.” However, that is not to say that one cannot achieve a verdict or settlement in a sexual harassment case far in excess of a million dollars. It can be done; however, it requires several key factors being present and it requires the case to be worked up in a thoughtful, yet aggressive manner.

i. Key Factors Which are Helpful for Plaintiff to Achieve a Seven-Figure Verdict or Settlement in a Sexual Harassment Case.

Sexual harassment cases can vary in value from thousands of dollars to millions of dollars. Because attorney fees are awarded if plaintiff wins, it is not unusual for a plaintiff to win under $100,000 in damages and an additional award of hundreds of thousands of dollars or more in fees. Under most attorney retainer agreements, the fee award becomes part of the client’s recovery out of which the attorney accepts his or her contractual contingency fee. For instance, if the compensatory damage award is $50,000 and the attorney fee award is $450,000, the attorney would base his or her fee on, for example, 40% of $500,000, or $200,000. The client benefits enormously by receiving a net settlement of $300,000 (minus case costs) instead of $30,000 minus case costs (i.e., in a $50,000 recovery after 40% fees, the client’s net recovery is only $30,000 minus case costs.)

Thus, every good liability sexual harassment case has at least a six-figure potential value, and it is generally recommended that a sexual harassment victim, no matter what the size of his or her company or even whether the company has a human resource department, should seek the advice of an attorney to learn of his or her rights. This section simply deals with the exceptional case which can become a multimillion dollar case.

To achieve a multimillion dollar verdict or settlement, the defendant usually must be a large corporation with not only assets sufficient to pay a large verdict, but sufficient assets for a jury to make a large punitive damage award. Second, there usually needs to be some sort of systemic problem with sexual harassment within the large company. Third, there needs to be prior complaints against the perpetrator which were not appropriately addressed by the company. Fourth, there needs to be an inadequate (or no) human resource department which fails to protect the employees and fails to conduct proper investigations. And, finally, it is helpful if the company has a financial motive for keeping the perpetrator employed while not adequately handling the complaints of the victims.

If the above factors are present and the plaintiff is a credible witness who has endured either severe or pervasive sexual harassment, the case can potentially be built into a seven-figure case.

ii. Start with the Deposition of the Highest Ranking Officer in Charge of Day-to-Day Operations of the Company.

A sexual harassment case will end up being an attack on the management of a company and/or the human resources department of the company. One of the key witnesses will be the highest ranking officer in the company with direct responsibility for operations under which the sexual harassment occurred. You want to take this person’s deposition when he or she is as ill-prepared as possible. If you wait until the end of the case when all the documents have been produced and all the other witnesses have testified, the person who ultimately called the shots in the company can tailor his or her testimony to fit the testimony of the other witnesses. If, on the other hand, you take this witness’s deposition right off the bat, he or she will undoubtedly deny that there were any significant problems within the company and deny knowledge of any prior complaints and state that everything in the subject investigation was done perfectly. Once you have this testimony pinned down, you can then take the deposition of current and former employees who will, hopefully, indicate that there were serious problems within the company regarding sexual harassment that this high ranking manager should have known about or did know about. Thus, the manager under attack will lose all credibility and you will be on your way to proving a punitive damage case.

iii. Demonstrate the Existence of a Weak Human Resource Department.

Most large companies have human resource departments and most companies’ sexual harassment policies call for human resources to handle the reporting and investigation of sexual harassment complaints. Thus, in most sexual harassment cases, the human resource department in on trial. If the company has an adequate sexual harassment policy and employees know how to report sexual harassment to human resources, and in fact report sexual harassment to human resources and the department performs an adequate investigation, then plaintiff will probably lose any sexual harassment case other than a strict liability case against a supervisor.

However, thorough discovery will usually reveal that the human resource department of the company is not as good as it looks.

The reason why human resource departments are inadequate is simple. They do not make money for the company. Many companies have human resource departments only because an attorney advising the company regarding sexual harassment has told them to, and often very little of the human resource personnel time is spent on sexual harassment prevention, training and investigation.

More typically, human resource personnel are involved in recruitment or employee benefits. That portion of their job keeps them busy and they have little time to deal with personnel matters. Also, human resource departments are typically run by low level employees. This is a particularly significant factor because it makes the victimized employees fearful to report the acts of harassment to human resources. They feel that they will not be protected by human resource employees with no power within the company. Frequently employees with higher rankings within the company feel that they will be further degraded if they report the harassment to lower level employees. Thus, if they report at all, they report to management and a company who believes it has an adequate human resource department will also take virtually no time in training its managers on the subject of sexual harassment. Thus, once the employee reports to management, the report is almost always ignored or botched, or the victim is blamed for the harassment.

Therefore, during discovery you need to find out as much as possible about the human resource department. Find out the specifics of the amount and quality of training received by human resource personnel and find out what there rank is within the company. If the company has no human resource department, the case can be even stronger.

iv. Hiring a Human Resource Expert.

One of the keys to obtaining a good result in a sexual harassment case is hiring a human resource consultant who can help guide you through discovery and provide expert testimony toward the end of the litigation. A human resource expert will be able to tell you the type of training that human resource personnel should have and the type of sexual harassment policy the company should have. Further, the consultant will be able to inform you of the way proper complaint handling and investigation should take place and point to inadequacies in the way that the defendant set up its sexual harassment policy, disseminated its sexual harassment policy and handled its sexual harassment complaints.

When your human resource expert testifies, he or she will have reviewed all the documentation that you have obtained in the case and should be able to provide powerful testimony to help a jury understand how the company failed its employees.

v. Take the Depositions of All of the Current and Former Employees Who Had Any Knowledge Whatsoever of the Plaintiff, the Prior Complainants and the Perpetrator.

A further key to building a sexual harassment case is to take the depositions of virtually every person who ever worked with the plaintiff, the perpetrator and people who made prior complaints of sexual harassment against the perpetrator. Although this may involve dozens of depositions, it is worth it. Invariably you will obtain contradiction between the testimony of upper management (see section 3) and the testimony of the many percipient witnesses.

This, like most portions of discovery in a sexual harassment case, is expensive and time consuming, but remember, with an appropriate statutory settlement demand, you will get your costs back and if you win the sexual harassment claim, you will be awarded fees.

Thus, the economics of a sexual harassment case are different than other personal injury cases or wrongful termination cases. The potential fee award can be a powerful settlement tool even in cases in which the defense will claim that the plaintiff has only a minimal injury. More and more courts are making fee awards in sexual harassment cases that exceed the actual verdict. Therefore, do not shy away from taking all of the necessary depositions.

vi. Be Relentless in Pursuit of Written Discovery.

There is an old adage that plaintiff’s attorneys are not making money fighting discovery wars. This is not true in sexual harassment cases when, one, a discovery ruling could lead to key evidence that will greatly increase the value of the case, and if plaintiff wins the case, plaintiff’s attorney will receive his/her fees. Any discovery that leads to evidence of notice or ratification is worth its weight in gold — so do not let defendants avoid answering questions on these subjects.

vii. Recognizing the Value of the Case.

After you have successfully completed discovery, it is important to not underestimate the value of the case if everything has gone well.

If you have a multimillion dollar company and you believe that you will be able to prove that at least one person was sexually harassed by the perpetrator before your client and the defendant had knowledge of this fact, then you may very well have a multimillion dollar case. This is true even if your client does not have a substantial psychological injury and even if the sexual harassment itself was not extraordinarily traumatic. If you can establish notice and/or ratification and get to punitive damages, then a jury will be motivated to make a large award if you make the proper arguments.

viii. Themes for Closing Argument in Sexual Harassment Cases.

We will briefly mention a few of the themes which one can utilize during closing arguments in a sexual harassment case.

The first theme that should be utilized is that an out of control large corporation has failed to protect its employees who are dependent on the large corporation for protection.

A second theme can be that the corporation has decided to protect its big money maker-perpetrator at the expense of the victim.

A third theme could be that the company, in failing to have an adequate HR department made an economic decision to increase profits at the expense of safety. This is a very similar argument to one that is utilized by plaintiff’s attorneys in product liability cases. The fact is that human resource departments do not make money for companies, so they are underfunded and overlooked by the company. Instead of putting financial resources into an effective HR department, the company decided to put its resources into the moneymaking departments. However, when it did this, it did so at the expense of employees whose safety is dependent upon an effective HR department. Without a good HR department, there cannot be effective sexual harassment training and prevention and employees cannot be adequately protected against perpetrators who are bound to exist in any large company.

ix. Conclusion.

Remember that sexual harassment cases are built and not handed to an attorney on a platter. However, with hard work and smart discovery, a good sexual harassment case against a large corporation has a very large settlement and verdict potential.

2. EMPLOYMENT DISCRIMINATION LITIGATION MADE SIMPLE

A. Discrimination Claims Can Be Brought under Both Federal and California Law.

There are a number of different laws that protect employees from discrimination. The two most frequently utilized in California are the Fair Employment and Housing Act (FEHA) (Government Code sections 12900 – 12996) and Title 7 of the Civil Rights Act of 1964 (42 U.S.C. sections 2000e – 2000e-17).

There are also a number of Federal and State statutes prohibiting employment discrimination. Employees can frequently choose whether to proceed under California or Federal law; however, there are different rights, rules and remedies under California law versus Federal law.

B. Who Is Protected under California Discrimination Law.

Except in cases of harassment, an employee must work for an employer who regularly employees five or more people to be entitled to protection under California discrimination law.

However, a harassment claim can be brought against an employer who employs at least one person or regularly receives the services of at least one independent contractor.

Further, when somebody is retaliated against because they complain about discrimination, the retaliation claim can be brought against any employer.

All public employers, such as cities and counties, are subject to discrimination claims.

Under California FEHA law, non-profit religious organizations are not subject to discrimination claims, but they may be subject to liability under the California Constitution.

C. Definition of an Employee.

Under California law (FEHA) an employee is considered anyone under the direction and control of an “employer” regardless of whether the employment relationship was based on an oral or written contract. Independent contractors may fall outside of the definition of “employee” for discrimination claims but not for harassment claims. Thus, generally speaking, harassment claims have a broader sweep and cover more potential workers.

D. The Requirement of Bringing an Administrative Claim.

Before pursuing a civil suit for harassment or discrimination under California law, a plaintiff must first exhaust his or her administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC).

It is important that the complaint specifically identify the discrimination and the perpetrators of the discrimination, or it may limit the remedies sought and people who can be sued in a civil case.

If an employee files with the Department of Fair Employment and Housing, he or she can ask the agency to not investigate the claim but, rather, simply immediately request a right-to-sue letter.

It is very simple for an employee to contact the DFEH or EEOC and file a claim, although generally it is best to do so with the help of an attorney who specializes in harassment and discrimination cases.

E. Statute of Limitations.

Generally speaking, a plaintiff must file a complaint with the Department of Fair Employment and Housing or the EEOC within one year of the harassing conduct. A plaintiff must file a claim with one of the governing entities before filing a lawsuit.

F. What Types of Discrimination Are Prohibited.

Not every form of discrimination is prohibited by law. Under California law, the following forms of discrimination are prohibited: race, religion, disability, age, sex (including sexual harassment), national original and marital status.

If an employee is discriminated against for any other reason, there may not be a case.

G. What Is the Standard for Discrimination.

Although Federal and California law differ slightly, discrimination claims fall into four broad categories:

individual “disparate treatment” cases, in which the employee must prove that the employer intentionally treated him or her less favorably than other employees because of race, religion, age, sex, etc.;
retaliation cases, in which the plaintiff must prove that the employer intentionally retaliated against him or her for opposing discrimination or engaging in protected activities;
disparate impact or adverse impact cases, in which the plaintiff must show that the employer’s otherwise innocuous employment practice has an unfavorable impact on a protected class and is not justified by any claimed business necessity;
cases involving class-wide pattern or practice or systemic disparate treatment cases, in which the plaintiff must prove a pattern or practice of intentional discrimination against a protected class, usually by showing a statistical difference between protected class members and similarly qualified members of the majority group, as well as evidence of individual instances of discrimination.

H. What Evidence of Discrimination Is Required.

The law recognizes that plaintiffs rarely have access to direct evidence of intentional discrimination so that in most cases, a plaintiff is allowed to introduce indirect or circumstantial evidence of discrimination.

I. What the Plaintiff must Prove.

To prevail in a “disparate treatment” case, the plaintiff must first prove that he or she is a member of a protected class, and that the employer intentionally discriminated against the plaintiff, most often by treating the plaintiff differently from the way the employer treated people not in the protected class. Generally, the plaintiff must prove the disparate treatment by indirect evidence such as establishing that members of a certain race or older workers (over 40 under California law) are singled out for demotions or termination.

Thus, as is most often the case, when the plaintiff’s disparate treatment case depends on circumstantial or indirect evidence, then the plaintiff must first prove the following:

that the employee is a member of a protected class;
that the employee was qualified for his or her position;
that the employee was discharged; and
that the employee was replaced by a person outside the protected class.

If plaintiff can prove all of this, then the court will presume that intentional discrimination has occurred.

However, that does not mean the plaintiff automatically wins. The employer then has an opportunity to rebut or counter the presumption of discrimination by stating a legitimate, non-discriminatory reason for terminating the plaintiff or taking any other adverse employment action.

If the employee can show that the reason stated by the employer for the termination or adverse employment action was not the true reason, but a pretext for discrimination, then the plaintiff will win the case. The plaintiff must prove to the judge or jury that the employer’s explanation is not worthy of belief and also that the employer’s action was, at least in part, discriminatory.

J. Proving Retaliatory Discrimination.

In a case in which the plaintiff is claiming he or she was retaliated against for complaining of discrimination or engaging in other protected activity, in the absence of direct evidence, the plaintiff must show that he or she suffered an adverse employment action and that there is a connection between the protected activity, such as complaining about discrimination or opposing discrimination, and the adverse employment action.

Again, the employer has the opportunity to demonstrate that there was non-retaliatory explanation for the employment action and the plaintiff must, once again, show that the explanation is pretextual (i.e., fake).

K. Harassment Cases.

Sexual, racial, religious and other forms of harassment are actually considered, under the law, to be discrimination. In cases of harassment, the employee does not have to go through the more difficult standard of proof required in disparate impact discrimination cases. To prevail on a harassment claim, a plaintiff need only establish that the harassing conduct was unwelcome, severe and pervasive and interfered with the employee’s working condition.

L. Recoverable Damages For Discrimination Cases.

In a discrimination case, a plaintiff does not need to undergo psychiatric or psychological treatment in order to recover damage for emotional distress.

To recover punitive damages, i.e., damages to punish the defendant employer, a plaintiff must prove:

that the employer hired or retained the discriminating individual with knowledge of his or her unfitness for the position and in conscious disregard of other’s rights for safety;
authorized or ratified the wrongful conduct; or
was personally guilty of oppression, fraud or malice.

A plaintiff can prove that an employer’s ratification for purposes of liability for punitive damage by establishing:

the employer adopted or approved of the action of the discriminator;
it can be inferred from the employer’s failure, after being informed of the discrimination, that it ratified the conduct of the discriminator by such evidence as a failure to fully investigate and punish the discriminator.

M. Recovery for Attorneys Fees.

3. MEDIATION.

A. Mediations Are Favored in California.

Mediation is an important aspect of Alternative Dispute Resolution (ADR).

The California legislature and the courts in California greatly favor mediation and other forms of ADR because they help to unclog the courts.

B. What Is Mediation?

Mediation in personal injury, employment, abuse, harassment or other civil cases is a process by which the parties (the plaintiffs and defendants in a lawsuit) come together in one place for anywhere from a few hours to several days to attempt to resolve their differences without expending further time, energy and money on litigation and/or trial.

C. Where Do Mediations Take Place?

Mediations generally take place in the offices of one of the mediation service providers; however, they can also take place in conference rooms, law offices or just about anywhere that the parties agree to spend some time trying to resolve their differences.

D. When Is a Case Ready For Mediation?

Although in the past, some courts have, and some still do, mandate early mediation in cases, it has been found to be generally useless to attempt to mediate a case until all sides are ready. A mediation can only resolve a case if all sides participate enthusiastically and, therefore, unless mandated by the courts, most experienced attorneys wait until the case is ready for settlement and all sides agree that the case is ready for settlement and decide to mediate.

E. Choosing a Mediator.

Mediators are generally attorneys or retired judges. They are paid by the parties and usually the expense of the mediation is split evenly, although there are some occasions in which the defendant or insurance company agrees to pay for the entire mediation.

Most mediators spend a substantial portion of their time (or their entire time) mediating cases. For their mediation practice to be successful, they have to earn a reputation for fairness and persuasiveness. Thus, good mediators tend to be respected by all sides in a case and are especially skilled at settling disputes.

Which mediator to choose in a case will usually depend on the nature of the case and the nature of the parties to the litigation. There are some mediators, for instance, who are especially skilled at piecing together settlements when there are multiple defendants in a case. Other mediators may be more sensitive to the emotional needs of a plaintiff in a sexual harassment or psychotherapist abuse case.

Some mediators may have expertise in a particular subject matter of litigation such as construction accidents, sexual harassment, medical malpractice, aviation or motor vehicle cases.

Most experienced attorneys are able eventually to agree on a mediator although sometimes several names have to be passed back and forth before there is an agreement. One of the great aspects of mediation is that in private mediations, the parties get to choose a mediator.

F. The Mediation Brief.

Generally speaking, attorneys for each side prepare a brief for the mediator, summarizing the case. Mediation briefs can be anywhere from five to 100 pages or more long, and they vary depending upon the complexity of the case and style of the attorney.

Usually each side also provides the other side(s) with a copy of the brief. Plaintiffs almost always provide the other side with a copy of their brief because they want it to be reviewed by the insurance company and/or corporate defendant who will be determining the amount of money to be paid in the case; however, some attorneys choose to keep their briefs confidential and provide them only to the mediator. This is allowed. Most good attorneys write thorough, persuasive mediation briefs.

G. The Opening Session.

Most mediations begin with a meeting around a large conference room table with the mediator, the parties, their attorneys, insurance adjusters and, if appropriate, representatives of a defendant corporation present. The mediator then explains the nature of the mediation and his or her attitude about mediation, settlement and what to expect during the course of the day. The mediator will make it clear that he or she is not the decision maker, it is the parties who, with the advice of their attorneys, make decisions.

The mediator will explain that the mediation is confidential and the mediator will have everyone in the room sign a confidentiality agreement. This means nothing that is said in a mediation can later be used outside of the mediation for any purpose whatsoever. The thought is that this helps promote honest, open discourse and less posturing.

In the usual format, each side will have an opportunity to present their case orally in a summary form to start the mediation. The parties themselves, and insurance adjusters, will have an opportunity to speak if they choose. The idea behind this arrangement is that this will be the only opportunity in a case in which everybody will be face to face and will be able to at least hear, if not agree with, the point of view of the other side. The job of the mediator is to help defuse the natural tension between the parties and help the parties focus on resolution rather than provocation.

In some highly charged cases, such as sexual harassment, sexual abuse or psychotherapist abuse, this process of an opening session may be skipped so that the parties do not have to be in the same room with each other, or separate opening sessions can be held in front of each party.

H. Private Caucuses.

After the opening session, the parties break up into separate rooms and the mediator spends the rest of the day going from room to room having private conversations with each side. The mediator will agree to keep confidential anything which one side wants to remain confidential; however, the mediator will often ask one side to allow the mediator to convey information to the other party under the belief that the more each side knows about the other’s case, the more likely they will be able to evaluate it accurately and reach a settlement.

Mediators vary vastly in style and the way that they handle the private caucuses, but usually they will try to point out privately to each side the weakness of their case and the strength of the case of the other side, while acknowledging the positive aspects of the case of the side with whom they are meeting.

They will also point out the value of settling a case rather than the uncertainty of litigation or trial.

At some point, sometimes quickly and sometimes very slowly, the mediator begins to ask each side to lower their demands and raise their offers of money so that the parties can move towards closure.

I. How Long Does a Mediation Last?

Sometimes it becomes clear very early that the parties are too far apart and not willing to move close enough together to achieve a settlement. In this case, the mediation is usually terminated and sometimes there is an agreement to return after more work is done on the case.

Other times, the mediation might have to be continued for a short period of time for a corporation or insurance company to obtain additional monetary authority to settle the case.

Usually, mediations are successful and by the end of the day, sometimes very late into the night, an agreement is reached.

J. The Settlement Agreement.

There will usually be a written settlement agreement created at the time of settlement in the mediation. Each party will sign the settlement agreement and at that point, there is a settlement that is actually enforceable in a court of law if any party tries to back out.

An important aspect of mediation is that non-monetary terms can be negotiated and added to a settlement agreement. For instance, frequently the defendants in a case will ask for confidentiality as part of the settlement. Or, in an employment case, plaintiffs will ask the defendant to provide the plaintiff with a good letter of reference. There is no limit to the amount of non-monetary terms that can become part of a mediated settlement.

K. When a Case Can Be Mediated.

A case can be mediated at any time during the course of the litigation or, actually, even before a legal complaint is filed. Early mediations can sometimes be productive, especially if there exists a clear liability case in which the corporation or individual defendant wants to avoid the publicity or embarrassment of a lawsuit.

Some companies have a policy of attempting to mediate employment disputes early; however, rarely do these type of mediations end up with large settlements although there are always exceptions. A mediation can occur as late in the process as during the middle of a trial or even after a trial while the case is on appeal.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.