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Pre-litigation Dispute Resolution

by Joe Markowitz
May 2016

Mediation's Place by Joe Markowitz

Joe Markowitz

More evidence that the practice of law has changed in fundamental ways: At a panel presentation this week at the SCMA Employment Mediation Institute, Ann Kotlarski, who represents employers and Curt Surls, who represents employees, both agreed that they prefer to resolve employer-employee disputes without litigation if possible.

Surls said that he always sends detailed demand letters setting forth the factual background his client has presented, as well as the legal basis for his client's claims, before filing a complaint. These letters usually do not contain specific monetary demands, but  do include an invitation to mediate the dispute. Kotlarski also initiates attempts at early dispute resolution. She always calls the plaintiff's attorney as soon as she gets a complaint or a demand letter, among other reasons to express interest in discussing settlement. Her practice is to suggest that the plaintiff's attorney send her a written demand, preferably using a non-antagonistic tone, that she can pass along to her client to get the ball rolling on settlement. When she is able to initiate an early settlement conversation, about half the time the discussions take place between counsel only, and in the other half the parties employ a mediator.

The advantages of this protocol are fairly obvious. Since most disputes are eventually likely to be resolved by negotiated agreement, often at a mediation, why not go there first, before incurring the costs and emotional turmoil of litigation, which only creates new opportunities for conflict before resolving the pre-existing one? Avoidance of cost is particularly important for employers in wrongful termination and other employment disputes, where attorneys' fees provisions are prevalent. Resolving disputes without initiating litigation is also beneficial for employees, whose career prospects are often severely hampered when they sue their former employer. With most court filings now easily accessible online, and searchable by anyone who makes hiring decisions, it is particularly important for employees to avoid litigation if possible.

Of course there are cases in which information must be exchanged before one or the other party is in a position to agree to a settlement. But in many of those cases, that can be done informally, without involving court processes like document requests and depositions. And of course there are also cases where the stakes are high enough and feelings strong enough that litigation is necessary. What is not necessary, however, is to start every routine employment dispute by filing a charge or a complaint.

Biography


Joseph C. Markowitz has over 30 years of experience as a business trial lawyer.  He has represented clients ranging from individuals and small businesses to Fortune 500 corporations.  He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own.  In addition to general commercial litigation, Mr. Markowitz has expertise in  intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation.  Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in  the Central District of California, as well as private mediations.  He has served since 2010 as a board member of the Southern California Mediation Association.   



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