Mediation of Class Actions: Preparing Yourself, Your Client, And Your Resources For Class Action Mediation

Class action employment cases present unique challenges for defendants that should be carefully considered early on in the litigation process. The financial and public relations stakes can be extraordinarily high. In addition to money for the class members, the relief sought often includes numerical goals and timetables, substantial changes in both operating and personnel policies and procedures, some form of external monitoring or oversight, and job opportunities for the class members. Once a class is certified, the costs and demands of class litigation can become overwhelming. It is therefore not surprising that most employers who have faced a real prospect of class certification and full-blown class action litigation look for ways to settle, particularly after a class is certified.

Achieving settlement of a class action, however, is far more complex and difficult than settling an individual claim. The stakes are much higher, and the issues, procedural rules and substantive law are far more complex. In addition, the parties need to satisfy the potentially conflicting interests of a large group, including the named plaintiffs, the putative or actual class members, the defendant(s), class counsel, the court, potential or actual class intervenors, any union that may be involved and other interested parties. We therefore find that parties to class action employment cases generally benefit by using mediators experienced with class actions to assist them in reaching settlement.

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