Often times in litigation, cases go to what is referred to as mediation.

This is an opportunity for both sides to meet with a neutral third party, who attempts to show each side the strengths and weaknesses of their respective cases, in an effort to bring the parties to a settlement, and avoid the costs and risks of trial and further litigation.

I always get the same question from clients before the mediation starts –

What do you think the case is worth, and what would be a good settlement?

I always like to give clients a settlement range of what I think the case is worth, versus, where I think the Defendant employer is going to wind up offering in lieu of going to trial.

Below is an email I recently sent to a client regarding advice on his upcoming mediation.

This is a look into how I would likely advise you on your case (not necessarily the amounts discussed, but the considerations of settling now, versus having your day in court).

Obviously, I have taken out confidential information about the case but you should get the basic premise here:

Dear XXXX:

I hope all is well. We will meet the morning of the mediation so just make arrangements for that day to go through some of the items we need to discuss. As to the value of the case, I told the other lawyer that I view this as a high six figure case. Obviously, the owner and lawyer are freaking out, because their business is not making as much as we believe (according to them) and a settlement of the size I am suggesting would bankrupt the company (according to them). They also claim that you had prior attendance/performance issues, and the case is not as clear cut as you believe it will be. This position they are taking is called lawyer posturing, so do not take it personally, and remember that nobody wants to give money away so easily.

Realistically, I think their goal is going to be to offer you about $75k in your pocket as a mediation settlement. Nobody has said that to me, but I’ve done this long enough to get a feel for these things. As we discussed, I think you have a very strong case. In my opinion, if we win at trial, the case is worth substantially more. The decision will be for you to make as to whether you want to potentially take less money now in a settlement (but be certain of having it in your hands), or you could decide to roll the dice and take this thing to a jury to vindicate your position and have your day of justice in the court. To some clients, their day in court is sometimes more valuable than any monetary award.

As you know by now, I’m not the type of lawyer who just wants to settle settle settle and accept the last best offer they are willing to pay. I’m a trial lawyer. I take a case with the understanding it is going to trial. But, you make the decisions on your case, not me. I will give my opinions, but we are not going to ever encourage you to give your case away by any means.

Share with me your thoughts on what you want out of this case. Too many lawyers fail to ask their client this question. Just remember, however, that really high demand numbers are not given away by employers at mediation to settle. Many employers figure that if your demand to settle is too high, they may as well roll the dice at trial as well. The higher the number goes, the more you have to realize that you are going to need to be committed to putting in the time and the effort to go to trial and wait for justice. Either way, I’ll be next to you the whole way through.

Let me know when you want to chat. I will see you at mediation next week.

Regards,

RC