Adishian Law Group, P.C. founder and California Attorney Chris Adishian explains “What is a Mediator’s proposal?”

Transcript

Over the last few years we’re finding that more and more cases at mediation are resolving through the mediator’s proposal. In essence, the mediator’s proposal means the parties have not been able to resolve the dispute on their own with the aid of the mediator during the day of mediation. So mediator’s proposal can take several forms, but basically it means at the end of the day, there’s a stalemate. The parties have not settled, and they authorize in the power of the mediator to make a proposal as to what he or she thinks might settle the case. The mediator will then give that figure to both sides on a double blind basis. If both sides accept the mediator’s proposal, then the case is settled. But if either side does not accept the mediator’s proposal, then the case is not settled, and the parties proceed on the path to trial.

Watch Adishian Law Group, P.C. founder and California Attorney Chris Adishian provide an answer to the question:  “What is mediation?”

Transcript

Mediation is a form of dispute resolution, it’s often confused with arbitration. They have a certain similarity in that it is in a form of alternative dispute resolution. And also, many of the same firms and practitioners who offer arbitration services, also offer mediation services. But in practice they’re very different. Unlike arbitration, mediation is voluntary. The parties elect to go to mediation to work with a third party mediator to try to resolve their disputes. And unlike an arbitrator, a mediator cannot impose a decision on the parties. So, if the parties don’t want to settle, they don’t have to settle, and if they don’t settle at mediation, then they just continue on the path to litigation. Now, in practice, many employment matters settle at mediation, usually after a fair amount of litigation, but not all of them.

Over the last few years, we are finding that more and more litigated cases are resolving at mediation through a “Mediator’s Proposal.”  This trend can be seen as a failure of mediation as a dispute resolution process because the parties are not actually resolving the dispute during the mediation.  If the Mediator’s Proposal ends the case though, then that does make a successful mediation, even if not as originally envisioned.

What is a Mediator’s Proposal?

A “Mediator’s Proposal” is exactly what is sounds like.  It is a proposal to settle the case that comes from the Mediator.  How does that happen?  Typically a “Mediator’s Proposal” arises after a full-day of mediation and the parties have been are unable to reach a settlement.  As a last ditch effort prior to resuming litigation, the parties empower the Mediator to make a settlement proposal which each side then has time to consider — i.e. the “Mediator’s Proposal”.

“But I thought Mediator’s Could Not Decide Cases”

They typically cannot, even with a Mediator’s Proposal.  It is just a proposal.  Either side may accept or reject the Mediator’s Proposal. If the both sides accept, then the case is settled.  If EITHER side rejects the Mediator’s Proposal, the case proceeds to trial without either side knowing if the other side accepted.

Keys to a Successful Mediator’s Proposal

By the end of the day an effective mediator (1) will have established trust and respect with each parties and (2) will understand either (a) what a case is worth, or (b) more practically, the number where the parties will likely agree to settle.  If the parties don’t trust the mediator (for whatever reason) or the mediator misunderstands the parties’ settlement ranges, the Mediator’s Proposal will likely fail.  However, if the Mediator has established trust and respect, then his or her opinion of the case will carry weight with the Parties and their counsel, and in some cases will provide adequate “cover” for the attending party with the “powers that be” on the respective parties’ sides.

About Adishian Law Group, P.C. Adishian Law Group (http://www.AdishianLaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of September 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

Telephone: 310.726.0888 | 650.646.4022 | 415.955.0888
Email: askalg@adishianlaw.com
Social Media: @adishianlaw | LinkedIn | Facebook | YouTube

FEHA Mediation and EEOC Mediation are options to consider when an ex-employee has filed a complaint directly with the agency.  You CAN have an attorney represent you at the FEHA Mediation (or EEOC Mediation), and we believe you should, as your former employer will almost surely be represented by counsel.

What is FEHA?  FEHA is the acronym for the Fair Employment and Housing Act, which references the set of California Statutes defining and prohibiting illegal discrimination in housing and employment.  The California agency that enforces these laws is the California Department of Fair Employment and Housing (DFEH).

What is EEOC?  EEOC is the acronym for the Equal Employment Opportunity Commission which is the Federal agency responsible for enforcing the federal laws prohibiting illegal discrimination in employment.

Resolving Claims of Discrimination:  Agency v. Civil Court:  In the majority of the plaintiff’s cases that we handle, we obtain a “right to sue letter” from the DFEH and proceed directly to civil court (state or federal), thereby bypassing the State Agency’s )i.e. DFEH) internal investigation and dispute resolution process.

However, some plaintiffs elect to file their complaint directly with DFEH (or EEOC).   Upon receipt of a the charge of discrimination from a complainant, DFEH (like the EEOC) follows a standard dispute resolution flowchart for each complaint.  You can find out more about EEOC mediation here.    An important part of the dispute resolution process for the DFEH and EEOC, is a mediation between the parties conducted with a third party mediator while the charge is pending in front of th DFEH or EEOC.

Importantly, a plaintiff can have an attorney represent them at the mediation stage of the agency’s dispute resolution process – and they should!   Otherwise, the inexperienced plaintiff will be there without an attorney, facing a company, its representatives as well as the company’s counsel.

We’ve represented clients at both DFEH and EEOC mediations in Southern California and Northern California, and around the country in EEOC mediations.  If you have filed a discrimination charge, and are looking for representation at an agency mediation, please contact us and we will be happy to review your case to see if we can assist.

About Adishian Law Group, P.C.

   Adishian Law Group (http://www.AdishianLaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of November 2015, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters.  Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet.  The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this article, contact Chris Adishian:

Telephone: 310.726.0888 | 650.646.4022 | 415.955.0888
Email: askalg@adishianlaw.com
Social Media: @adishianlaw | LinkedIn | Facebook | YouTube