Employment class actions present distinct challenges. The legal, factual, and emotional stakes are high. With significant exposure on one side and reputational risk on the other, mediation has become a preferred forum for resolution. Yet the success of mediation hinges not only on the quality of the mediator or the case facts, but on how well each side prepares.
Below is a playbook for both plaintiffs and defendants to consider in preparing for employment class action mediation. While each case is different, certain strategies consistently increase the likelihood of a productive resolution.
1. Choose the Right Time to Mediate.
- For plaintiffs, early mediation may offer a quicker result and risk reduction, particularly where class certification is uncertain.
- For defendants, waiting until after a dispositive motion or class certification ruling may improve bargaining posture, but increases defense costs.
- Many mediations now occur after informal discovery, when key data has been exchanged. Make sure the data has been analyzed and that both sides have sufficient information to make mediation meaningful.
- Both sides should assess whether enough discovery has occurred to anchor a meaningful discussion of liability and damages.
2. Select a Mediator with the Right Experience and Style.
- Choose someone who understands class certification, wage and hour exposure, and PAGA implications.
- A mediator familiar with both plaintiffs’ and defense strategies will often command more credibility with both sides.
- Consider what you need in a mediator. Do you want someone who quickly arrives at a number, or someone who will help the parties develop their own numbers? Do you need someone to test your client’s position, or someone who will follow the client’s lead? Identifying this in advance improves the mediation dynamic.
3. Coordinate on Data Exchanges in Advance.
- Plaintiffs should request clean, usable class data early.
- Defendants should anticipate these needs and produce data that can inform a damages model.
- Identify holes in the data before mediation. Doing so at the mediation itself is unlikely to be fruitful.
- Early transparency about assumptions can reduce friction at mediation.
4. Develop a Damages Framework Beforehand.
- Plaintiffs should model various scenarios using conservative and aggressive assumptions.
- Defendants should create their own exposure models and prepare to challenge key assumptions.
- Both sides benefit from preparing charts or visuals to explain the models succinctly to the mediator.
5. Understand the Legal Landscape.
- Plaintiffs should anticipate and prepare responses to key legal defenses, including arbitration agreements and manageability arguments.
- Defendants should evaluate recent authority on certification, especially in the relevant jurisdiction.
- Both should consider whether recent case law affects potential appellate exposure.
6. Prepare Decision-Makers and Set Realistic Expectations.
- Plaintiffs’ counsel should educate class representatives on the process and likely dynamics.
- Defendants must ensure client representatives are fully briefed and authorized.
- Preparing decision-makers is critical. Class action issues are often very emotional for companies, particularly where the perceived violations are small but the exposure is large. Helping clients on both sides digest these realities beforehand makes for a more productive mediation.
- Parties should enter mediation with a range, not a number.
7. Address Non-Monetary Terms.
- Consider injunctive relief or changes to policies as part of the package.
- Consider preparing a memorandum of understanding (MOU) in advance and exchanging it prior to the session.
8. Manage Emotions and Tone.
- Class actions often involve systemic allegations. Counsel should help the parties focus on resolution rather than vindication.
- Try to focus on concerns and needs rather than positions.
- The tone of the opening session (if any) can help or hinder progress.
9. Use the Mediator Strategically.
- Be transparent about red lines and deal-breakers.
- Let the mediator reality-test positions and carry messages that would be harder to deliver directly.
- Use caucus time to reevaluate positions and develop options.
10. Plan for the Impasse.
- Mediation is always confidential. Ask the mediator for guidance on how to overcome an impasse.
- Consider a follow-up call or second session before abandoning the effort.
- Even without a resolution, mediation may narrow disputes or frame future negotiations.
Conclusion
Mediation in employment class actions is rarely simple. Yet, when counsel on both sides invest the time to prepare with precision and purpose, the process often leads to better outcomes. Mediation is not only about the numbers. It is about managing risk, uncertainty, and often, deeply held beliefs about workplace fairness. By treating mediation preparation with the same seriousness as trial preparation, parties significantly increase their chance of meaningful resolution.