Tightening labor markets and high demand for key employees increase pressure on employers to enforce covenants not to compete. Those enforcement actions, though, carry heavy and immediate economic and non-economic costs and risks, particularly in seeking immediate injunctive relief. Attorney fees mount quickly because the work necessary for a temporary injunction compresses work done typically over a year in other litigation into less than a month. The employer should consider how it wants to achieve its goals and limit the exorbitant costs and risks of noncompete litigation. Therefore, before sending a demand letter or filing suit, former employers should not only prepare for temporary injunctive relief, but also determine how to reach an early, cost-effective resolution before the temporary injunction hearing.

An effective mediator can assist the parties to such a resolution. When choosing a mediator, in addition to the mediator's reputation, personality, style and experience, counsel and parties should also ascertain whether the mediator has any experience with noncompete litigation. The mediator should be familiar with both the law and judicial views on the enforceability of noncompetes. Additionally, the employer should determine the availability of multiple mediators due to the fast pace of noncompete litigation involving early applications for injunctive relief.