• mediation speeds up resolution
    saves money, and satisfies clients.


class action/wage & hour mediation

Class actions are, it has been said many times, lawyers’ cases. This insight informs the process by which they should be mediated, because lawyers tend to be competitive negotiators. Many issues arise in class cases that are not present in the individual case, any one of which can become problematic. While not all such cases are high dollar cases, the aggregation of claims generally means significant money is at stake, and often institutional interests as well. The high stakes and litigation costs are important incentives to settle. There is an unseen third party at the table for every class action case settlement discussion: the trial judge. Judicial approve of the settlement is necessary, and this influence tends to moderate the more aggressive impulses that emerge.

Detailed advance planning is key to getting anywhere in attempting to mediate a class action settlement. Before the mediation begins, it is vital to establish some common baseline for the damage calculations. If people have different ideas of what a particular settlement represents in dollars, this will emerge at some point and thwart the negotiating process.

My practice is to convene a telephone or in-person meeting of the principal attorneys in the case to review a checklist of potential areas for dispute that come up. The objective is to understand where the obstacles are and to swap information on specific points. This may include attorneys’ fees for class counsel; class certification defenses; the dollar impact of particular merits issues; adjustments to calculations; defenses; the detailed elements of the damage calculation; whether the settlement will be based on calculated individual payments or be based on a formula with a claim form to be completed; how unclaimed funds will be handled; administration of the settlement; whether there will be subclasses that are treated differently; and incentive payments to class representatives.

The process of mediating class cases tends to take longer than the ordinary individual case. Two factors are primarily responsible. First, the number of complex issues presented requires time to pare down to those that are financially important and sometimes to craft creative solutions to the problems such issues may create. Second, the stakes are high enough, both in dollars and in client expectations, that parties are cautious about making concessions, sometimes leading to protracted negotiation that stretches over a period of weeks or even months.

Mediation of class cases is challenging because the bargaining phase of the process brings out the competitive instincts in the attorneys on both sides. It is rewarding as well, since attorneys on both sides usually recognize at some level that they have a common goal and must cooperate to reach it.

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