As a mediator assigned to many court ordered wage and hour cases, I sometimes notice a lack of pre-mediation preparation. This lack of preparedness can be traced, in part, to the mistaken belief that a wage and hour mediation without formal discovery is doomed from the start. There is also a sense that a defendant’s ability to pay, and a plaintiff’s ambivalence about appearing at trial, are factors that will override any meaningful discussion of the merits.
A course correction is needed in the approach to wage and hour mediation which includes a deep dive into the file. Knowing one’s file helps ensure that the plaintiff’s opening demand is fact-based and the defendant’s initial offer exceeds the obvious “nuisance value.” Even if non-specific “horsetrading” is expected during the negotiations, advocates must still ascertain basic information such as the approximate number of hours worked by the plaintiff, the period of employment and the amount of compensation paid.
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February 09, 2022
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