Wage cases are stressful for everyone involved. Workers, sometimes representing a large, similarly situated group, feel as though they were systematically underpaid. Employers often feel as though they tried to comply with the law, but nevertheless are facing a huge liability. The lawyers on both sides have to contend with difficult substantive law, a tricky procedural minefield, and document-intensive discovery.
By the time mediation day rolls around, everyone wants to settle the case, provided the terms are reasonable. Sorting out the deal terms at mediation is hard enough. The last thing anyone needs is a distraction caused by a lack of preparation or a preventable mistake. While no mediation is ever perfect, here are three keys to setting wage class/collective cases at mediation.
More than other types of cases, timing matters when mediating class and collective actions. Too early, and the parties may not have the information they need to properly evaluate the case. Too late, and they may be staked out on rigid legal positions, having invested significant time and money on the litigation that could have been applied to a settlement.
In most cases, the “Goldilocks” moment is after a reasonable amount of discovery, but prior to class certification or summary judgment. It is essential the parties know enough through discovery to take informed positions about the size and scope of the class, the challenged pay practices, and the...
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