While there are certain elements present in every mediation, some types of cases are unique. A wage-hour collective or class action breaks the typical mediation paradigm. In most employment law-based mediations one expects:

• At least four participants with adverse or at least nonaligned interests—plaintiff, plaintiff's counsel, defendant and defendant's counsel.
• Limited concern over "opening the floodgates" to similar claims.
• Creative "value-adding" resolutions.
• A deep well of fact-intensive case law driving risk and valuation analysis.
• A settlement contract fully enforceable by the courts without oversight by the court as to the terms of that settlement.

And then there is the wage-and-hour collective/class action mediation. It's a different type of case, and as mediator of wage-and-hour collective class action cases, I'd like to share some of the unique aspects of these types of cases.

The Reason There Are Only Three Participants (Not Four) at Mediation

As a practical matter, defendant, its counsel and the counsel for the class participate in a wage-hour class or collective mediation. Plaintiffs themselves (including the named representatives) are largely absent from the negotiation altogether and are typically absent physically from the mediation sessions.