Often, after an aggrieved employee files a discrimination charge with EEOC or DFEH, the agency invites both parties for a mediation. This is a voluntary proceeding and both parties - the employee and the employer must agree to participate in order for it to take place.
There is a number of compelling reasons why you should take advantage of the mediation process if the employer agrees to participate as well:
* Mediation is a proven tool to resolve employment cases, which are inherently difficult to prove one way or another. By coming to the mediation table, you retain significant amount of control over the outcome, rather than living your case to the mercy of court/jury. Since statistically, over 75% of Plaintiffs lose their employment case, the advantages of early negotiations are significant.
* EEOC / DFEH mediation is usually free, while private mediators charge up to $3,000 or more per party per day.
* EEOC/DFEH mediation allows you to resolve your case much sooner, and there is simply no price tag on avoiding the litigation process which can be stressful and time consuming, and at the very least you should explore and early resolution of your case. This is especially true if you are still employed with the same employer against whom you filed a discrimination charge.
* At the end of the mediation you don't have to settle your case if you don't want to. However, at a minimum, you will find out the employer's position, and the arguments/defenses they are likely to use if you chose to file your case in court and litigate.
* An experienced employment attorney should do the following in order to effectively represent you in your case:
(a) Meet with you in person and thoroughly understand the facts of your case.
(b) Candidly and openly advise you how the law applies to your case, and inform you of the strengths and the weaknesses of your case, and remind you that no employment case is perfect, and proving the employer's liability is a challenge in most cases.
(c) Explain to you exactly how the mediation works and answer any questions you might have about the process.
(d) Attend your mediation with you and facilitate the process.
If you decide to attend EEOC/DFEH mediation on your own and without legal representation, at the very least, you should meet with an experienced employment attorney who should evaluate your case and advise you on the best negotiation and mediation strategies you can use given the unique circumstances of your case.
It is important that when your attorney says something to you about your case, you understand not only what he/she says to you but also why. Often, you will hear things that you will not be happy about - your attorney might talk about the problems in your case or the weaknesses of some or all of your claims. The attorney might also talk to you about why your version of the events seems to be less believable than the version of the opposite side. If your attorney does not explain to you the reasoning behind his opinion about your case, do not hesitate to ask. Many attorneys (including myself) love to educate clients and explain to them how the law fits into the facts of their case. Most of the time, legal analysis is not a rocket science and you will be able to understand what the strengths of your case sare and what the expected challenges with proving your claims are.
Some clients take their lawyer's opinion about their case personally. When they hear something negative about their case, they start thinking that their attorney is either incompetent or insecure or is unwilling to fight for them. While in some (probably very few) cases it's true that the attorney has improper motives, usually there are legitimate reasons as to why your lawyer would share this kind of information with you - it's because that lawyer has real concerns about your case and he wants you to have realistic expectations about your case and understand the different issues that pretty much every employment case has and many other kinds of cases have.
You might think that your attorney's job is to fight for you and your case. While this is in part true, you also have to remember that your lawyer's equally importnat job is also advise you about the merits of your case and make sure that the fight you are both fighting is fought most correctly and most wisely in light of the unique facts of your case.
An attorney who is not sure about your case is probably more trustworthy than someone who is overconfident and who simply tells you what you want to hear.
One of my recent clients mentioned to me about the mistake she made hiring a family law lawyer for her divorce just because he made an impression on her of being fearless, very aggressive and confident in his success. It took many months and many thousands of dollars for the woman to realize that the lawyer is artfully "milking" her at an hourly rate of $375, by continuing to convince her not to accept a reasonable settlement and go to trial.
Eventually, due to a fall-out, she switched attorneys and was surprised as to how much more mellow the new attorney was. At first it was alarming to her, but as she continued to work with him, she realized how much more competent her new lawyer was. The settlement was reached shortly after to my client's satisfaction. She related to me that the response of her ex husband and the opposing attorney to her new lawyers was completely different and they got along much better right away because her new lawyer did not engage in pointless arguments or personal attacks against the other side like her prior attorney did.
My client learned a very important lesson from her personal experience being represented by an attorney - having a bad relationship with the opposing side has no benefits to the case. At the end of the day, everyone is interested in some kind of resolution, which means a transfer of money from one set of hands to the other. That transfer is much more likely to happen if there is a good relationship between the parties, no matter how contentious the legal issues are, because any person is more likely to give and compromise with someone they respect rather than someone they can't stand, and as a result want to harm financially any way they can.
People tend to be very thorough when it comes to buying a pair of shoes or buying car. They would try many pairs of shoes before deciding on the pair they are going to buy, and they are going to spend hours researching cars, talking to friends and test driving different vehicles before making the choice.
However, when looking for legal representation, many people commit the same two very common mistakes that prevent them from finding the best attorney for their case:
1. The first mistake is choosing and attorney randomly from yellow pages, an online directory or otherwise, knocking on the first door they see. This is one sure way to end up with an attorney who is either incompetent in the specific area of law which your case concerns, or who is too busy to give you and your case the work and the attention it needs.
Most legal issues are not urgent. Unless you or your close one is in custody and facing a criminal prosecution, or eviction, or an imminent child custody battle hearing is about to take place, or unless the statute of limitations on your case is about to run, there should be no urgency in hiring an attorney the same day you started looking for one. Most legal issues take months or longer to resolve, so whether you sign up with an attorney today or next week, it is not going to make any difference to the outcome of your case. For example, suppose you believe you have been wrongfully terminated in California about 6 months ago. Unless the employer was government agencies, all the possible employments claims you might have (discrimination, retaliation, harassment, etc...) have at least one year statute of limitations. Signing up with an attorney who is not right for your case just because he was the first one to return your call or meet with you may seriously affect the outcome of your case.
Word of mouth is as ancient as it is the most reliable way to find a person to perform services for you. Legal field is not an exception. It is well worth your time to do a thorough research and understand your legal issues. Then, you should try your hardest to find one or more people who had a similar legal issue and who were happy with the attorney who represented them in their case. No matter how unique you think your situation is, you would be surprised to find out that quite a few other people faced the same legal problem. You might think that no one you know may have ever been involved in anything similar to your legal claim, but if you start asking people around, you would be surprised to find out that someone will most likely know someone else who had an issue like yours, and it is well worth getting in touch with them to educate yourself about the possible issues you might have with your case, the mistakes you should avoid making, and whether the attorney who helped them might be right for your case.
2. Not making a good impression on the attorney once you meet him. The best attorneys are also the pickiest. Since they have a reputation for being good, they get more potentially business than they can handle. They naturally want to choose the best and the highest value cases or other kind of legal work and they want to work with people who they enjoy representing. It is well established among lawyers than representing a client who seems like he/she will be trouble down the road is more trouble than its worth. The most successful attorneys have no patience for potential or existing clients who are dramatic, have a sense of entitlement, believe in conspiracy theory against them, or who will not listen to the attorney's advice, believing that they know it all because they spoke with a couple of friends or looked up a few cases or legal concepts on the internet.
Normally, when it comes to a consumer - service provider relationship, the consumer is in the position of greater bargaining power, which has been briefly encapsulated in the "client is always right" motto. However, in legal (and medical) field, the provider is actually in the shoes of the consumer and has the power of choosing who he/she will work with.
What this means to you is that you should sell your case and yourself to the attorney who you would like to represent you. Being courteous and respectful, only telling the truth without exaggerating the facts of your case, having as much documentation to support your claims than you can, listening more than talking, and appearing like a calm and polite person without any sense of entitlement will make the attorney want to represent you and help you, even if your case is not as big as that lawyer would expect to work on.
Yesterday, I received a call from a potential client who was understandably angry. She was terminated and apparently falsely accused of egregious misconduct that she never committed. It's possible that she had a legitimate workplace defamation claim
against her employer.
The woman sounded infuriated and eager to go to "war" against her employer as soon as possible. As soon as I started explaining to her what evidence she needs in order to have a legitimate defamation claim and what she was currently missing to have a case, she said: "I think you are wrong, I am going to continue looking for a lawyer" and hung up the phone.
That caller was of a known type - she is driven by her emotion, and by her desire to hear what she wants to hear. I did not even have a chance to tell her that I am a lawyer. And, while I sincerely sympathize with her situation and the unfortunate events prior to her apparently wrongful termination, I was there to advise her on her legal
rights, not what's fair and not on what's right. I just hope that she doesn't waste too much time calling other lawyers around town, or paying a large amount of money who will take advantage of her emotional state and lead her to believe that she has a case without investigation the facts of her claim carefully, as it's so critical to a successful prosecution of any wrongful termination claim, and especially when it comes to slander and libel at workplace.
One of the most valuable elements in successful prosecution of the case and in a good attorney-client relationship is actually liking the lawyer who represents you and knowing that your lawyer likes you.
Although this might sound like an obvious point, many of the attorney-client relationships are permeated with negativity and lack of mutual respect. The attorney might think of his client as a psycho or a liar, wishing to settle his case as soon as possible without providing quality legal representation, while the client might think of his attorney as an arrogant, pompous person, who only cares about making as much money as possible in as little time and with as little work as possible. This often significantly hurts the case, making both parties in an attorney-client relationship unhappy.
On the other hand, when the lawyer likes and has respect for a particular client, he is motivated and eager to help him and work on his case. This motivation will translate into a better and a more aggressive advocacy for the client. A great client - a client who is completely truthful, not overly verbose and who has reasonable expectations, not tainted by media, is a valuable asset to any attorney.
So, if you consider hiring an injury lawyer, and employment attorney or any other kind of attorney, make sure that you actually like the person who will be representing your legal interests and that you get the same vibe from him before you sign a fee agreement.
I have had a chance to look back at the last 20 cases I have handled, the results I obtain in representing injured persons, workers and small business around San Francisco Bay Are and Sacramento, and I have come to a conclusion that might sound obvious to many - I have achieved the best results and enjoyed working the most with clients who I liked as individuals, and who I genuinely enjoyed meeting.
Legal representation is a rather unique and in many ways intimate relationship. When an attorney meets a potential client, he gets to find out many private facts about his life - his medical history, educational and employment history, his current financial situation, criminal record, etc... If the lawyer is engaged in representation, the attorney and the client will be working closely together over a long period of time. A typical civil claim can take anywhere from 6 months two 2.5 years or longer to resolve, especially if the case is being appealed.
Thus, it is essential that the attorney and the client simply like each other as humans. A client who likes his attorney, will be more reasonable and courteous in his communication with the attorney, and in turn will receive a better representation from a lawyer, who will be more motivated to help a person who, he actually wants to help and see receive great results.
Don't settle for an attorney who you consider arrogant, grumpy or unreliable/not responsive just because he/she charges less per hour or because his office is located closer to your residence. Make sure you feel comfortable working with the person who represents your interests in a legal matter, even if his hourly rate or contingency fee is a little higher, and even if it takes a few minutes longer to drive to see him. It will pay off in the end.