Frequently Asked Questions
Q: How much will a mediation with you cost?
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A: I charge a flat fee of $7,000 per mediation, allocated to the parties as they agree, which must be paid to confirm the mediation session. Most mediations are conducted remotely online, but if the parties wish to have an in-person mediation session and ask that I make arrangements for the location, the parties will be responsible for those costs, divided as they agree. I do not charge any travel expenses for in-person mediation sessions conducted anywhere in California for mediations confirmed at least 21 days in advance of the mediation. I do not charge for reasonable follow-up efforts. In the rare circumstance a charge in addition to my flat fee is contemplated, this will be disclosed fully to all parties, and their agreement must be obtained before those charges will be incurred. There are no hidden fees or charges, and there are no case management or administration fees.
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​Q: What types of cases do you mediate?
A: I mediate only employment disputes. This broadly includes civil rights claims (generally this means cases involving claims of discrimination, harassment, and retaliation); contractual disputes in the employment context, including those with issues of employment classification (such as where a party's status as an employee is disputed); wage and hour claims; workplace violence and other misconduct, trade secrets and other employment related intellectual property issues; and closely related issues. I mediate cases with ancillary issues that are not encompassed in the above categories if the predominant claims are within those categories. I do NOT mediate cases that are primarily workers' compensation cases (such as those proceeding exclusively before the California Workers Compensation Appeals Board), but I do mediate cases where there is a dispute about whether workers compensation provides an exclusive remedy where the claims are based on issues of discrimination, harassment, retaliation, and other alleged intentional misconduct.
Q: As an attorney who has grown skeptical of mediation, like so many others, why should I even bother with it anymore?
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A: I have had my own frustrations with mediations in my over 23 years of experience with them. I've listened to the issues faced by colleagues in both the defense and plaintiffs bars, and I have been very intentional in creating a better, more rewarding mediation process that leads to a mediation experience that reinspires and restores confidence in the wisdom of mediating employment disputes. From beginning to end, you will see differences in my approach to mediations that make mediation easier and more effective (and at a very reasonable cost).
Q: What makes your mediation process different?
A: I have developed a mediation process that quickly, efficiently, and effectively allows me, the parties, and their counsel to focus on the fundamental areas of disagreement about facts and law, acknowledges where parties are in agreement, and maximizes the potential for a negotiated, voluntary resolution. This process differs from most mediations in several respects, including guided briefs, a structured seven-hour schedule, maximum flexibility with remote or in-person attendance, and customized utilization of interdisciplinary negotiation techniques designed to assist parties in understanding how a voluntary, negotiated resolution is in all but very few cases a superior alternative to continued litigation. The goal of every mediation is to facilitate a judicially enforceable resolution by the end of the mediation session that all parties and their counsel agree is the best way to move forward, and with an understanding through the mediation process that inspires confident decision-making, minimizes doubt, and prevents "buyers' remorse."​
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Q: Can you tell me more about your use of guided briefs?
A: I have developed different mediation brief templates for attorneys representing employees and employers that provide parallel structures for presenting to me the information most important for a successful mediation. They are designed to facilitate fast and easy presentation of that information (including exhibits) and ensure that important basic information is not omitted. This guided brief structure facilitates a laser focus on key issues that commonly arise in the types of employment disputes I mediate, whether legal or factual, and organizes the relevant information in a way that allows me to easily compare and contrast differing viewpoints and key evidence, which in turn allows me to maximize the time I spend in mediation on overcoming obstacles to settlement. While some of the important information sought in the guided briefs is simple check boxes, there are open-ended questions, and there is ample opportunity for attorneys to brief issues and supply evidentiary materials they believe may not be sufficiently covered in the guided topics. Attorneys will immediately see and appreciate my familiarity with the issues as they work with the templates and they will feel at ease with my expertise knowing they do not have to supply basic legal principles (for example, they will feel comfortable knowing they do not have to explain the meaning of a good faith interactive process or concepts of direct and indirect evidence, such as McDonnell Douglas burden-shifting). If attorneys believe they need to address something unique, picayune, or new or pending legal developments in the briefing, they are welcome and encouraged to do so.
Q: Why do you limit the mediation to seven hours?
A: I utilize a structured schedule that has different phases in the mediation session, in service to different principles used to overcome obstacles to settlement. This structured schedule is designed to minimize gamesmanship and establish a foundation on which the parties and their attorneys build self-confidence in a voluntary, negotiated resolution as the best alternative. I've been in countless mediations that draw out to 2 or 3 in the morning. My experience has shown me that there is almost never any need for such elongated mediation sessions, and they are generally the result of parties attempting to wear each other down with gamesmanship, lack of preparedness of the mediator, spending too much time covering information omitted in briefs, and too much time shuffling unrealistic numbers back and forth. The parties must agree to the entire seven-hour period and allow the mediation process to be completed, so there is no drama of walkouts, but every participant is aware of the timing. No one is at their best in the fifteenth hour of a mediation. People generally have needs to eat, sleep, be with their loved ones, and be productive the day following a mediation. Overly long mediation sessions create stress, anxiety, exhaustion, mistakes, and more frequently lead to buyer's remorse (sometimes on both sides). The structured schedule I have developed takes the wasted time out of mediation but allows a comprehensive appreciation of the issues in dispute and a full opportunity for overcoming obstacles to settlement without compromising the wherewithal and confidence of the parties and their attorneys.
Q: What do you mean by interdisciplinary negotiation methods?
A: I utilize legal negotiation techniques, including cooperative (e.g., bargaining in contracts) and oppositional (e.g. resolving legal conflicts) techniques. Additionally, I am formally trained and experienced in negotiations in various contexts of organizations. This formal training draws on individual and group psychology, administrative science, sociology, anthropology, and organizational theory. The specific modalities I use are various methods employed in organization development, and more specifically in change and conflict management and span process consultation, force-field analysis, and various aspects of total and continuous quality management. I have a deep knowledge of organization theory and management including doctoral level training in organization development and administrative behavior.
Q: Do you arbitrate employment disputes?
A: No, I am strictly a full-time neutral.
Q: Do you follow-up if a settlement is not reached at the mediation session?
A: Yes, I engage in reasonable follow-up efforts at no additional charge, but the goal of every mediation session is a judicially enforceable resolution achieved during the mediation session.
Q: When are submissions of mediation briefs due?
A: One week (five "court days") prior to the mediation session.
Q: Do you supply the location of the mediation?
A: Most mediations are conducted remotely (with all participants appearing online with Zoom or various other platforms if Zoom is for some reason an unacceptable platform for one or more of the parties), which eliminates the need for in-person attendance at a specific location and allows parties and their counsel to participate from wherever is most convenient for them. If the parties prefer or a remote session is not practicable for some reason, I mediate in-person sessions at a location supplied by agreement of the parties, or I will arrange a location that is convenient to the parties with the costs split as the parties may wish. I do not charge for my travel expenses within California when the mediation is confirmed at least 21 days in advance.
Q: Do you charge any case administration or management fees?
A: No, my no-hidden-costs flat mediation fee is the only fee charged by me, unless the parties wish to have an in-person mediation session at a location I arrange, in which case the costs of the site are paid by the parties in whatever allocation they may agree.
Q: You have been a former opposing or co-counsel of mine. Will you still mediate my case?
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A: YES! I absolutely encourage former opposing or co-counsels of mine to mediate their cases with me. I am fortunate that my best referral sources throughout my career have been former
opposing counsels who know and respect the depth and breadth of my employment law expertise and my tenaciousness and skill as an advocate (and now as a neutral). This "built in" relationship knowledge is useful in mediation, and for those who do not yet know me in that regard, I am determined to build that trust with you as a neutral in the mediation setting.
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Q: How are briefs and exhibits to be delivered to you?
A: Except in very unusual circumstances, briefs and any accompanying exhibits should be delivered to me only electronically by email (tony@lewisedr.com). This may be accomplished by attaching the briefs and exhibits as .pdf format documents (other formats may be acceptable, but please confirm with me first), or with a link for me to download them from a secure site. Upon request, I can also provide access to upload these documents to a secure Drop Box folder.