A Field Guide to California Employment Mediation
This guide collects the Monday x Morello Mediation series in reading order. Five chapters cover the lifecycle of a California employment or class action mediation, from the initial decision to mediate through resolution, followed by a chapter on class-specific considerations and an appendix of working tools. Each chapter opens with a brief introduction; posts are listed with short abstracts. Read straight through, or jump to what you need.
Foundations
-
The series introduction: what it is, who it’s for, and the original six-part plan.
-
A working definition that goes beyond the California Rule of Court — a confidential process in which the mediator gets the parties to talk, contain the past, look to the future, and resolve their disputes without the Court.
-
How case volume, speed, and the disappearance of personal relationships between counsel turned mediation from a courthouse-steps formality into a routine tool of practice.
-
The numbers behind the trend — 4.5 million superior court filings statewide, over 500 federal filings per district court judge in the Ninth Circuit — and why no judge is going to know your case better than you do.
Read the post →
-
Two categories of case that should not be mediated — unicorn cases that exist to make new law, and bellwether trials that need real verdicts before resolution is possible — and how to recognize them.
-
Five risks to evaluate when deciding whether to mediate: reputational, business practice, key employee, severity, and client risk — with the recognition that most cases benefit from mediation once those risks are honestly assessed.
-
A field taxonomy of the lawyers across the table — Dabbler, Early Bird, Analyzer, Worrier, Trial Zealot, Reckless — and what each one needs to come to the table.
-
The argument for class mediation as the default, with the Bartz v. Anthropic settlement as the case study — how courts assess settlements, why pre-mediation disclosures matter, and what timing really looks like in a class case.
-
Mediators exist because advocates don’t have to feel empathy for the other side. That’s the mediator’s job — and it’s why purely evaluative mediators rarely move cases.
-
What “neutral” misses about the role: a good mediator advocates for resolution, takes the heat when it helps, and doesn’t disappear when the case doesn’t settle on day one.
Foundations covers the threshold questions: what mediation actually is, why it came to dominate employment and class action practice, which cases don’t belong in mediation, and how to assess the rest. The chapter closes with two posts on what a mediator should be — the working definition I bring to every case. Read this chapter if you’re new to mediation, refreshing before a case, or trying to evaluate whether mediation is the right call for a matter on your desk.
Before the Mediation
Before the Mediation moves the case through preparation — when to schedule, how to use AI without embarrassing yourself, what belongs in a brief and who you’re actually writing for, how to make the pre-mediation call count, choosing between in-person and remote, and preparing your client for what’s coming. The chapter assumes the decision to mediate has been made; everything here is about arriving at the day ready, with your client ready too.
-
Perfect timing doesn’t exist; informed timing does — what uncertainty you have, what you can comfortably leave unresolved, and what your client actually needs from the case.
-
A working explanation of how transformer-based LLMs actually function, why their outputs are probabilistic predictions rather than reasoning, and what that means for the case valuations clients are pulling from ChatGPT.
-
How to use LLMs effectively in case prep — the prompt structure that produces useful output, sample prompts for editing briefs and generating summaries, and the things LLMs should not be used for.
-
When a formal brief is and isn’t necessary, what class cases require that single-plaintiff cases don’t, and why shared briefs and joint sessions often work against the parties.
-
Briefs get written for clients, opposing counsel, future motions, or just to vent. The mediator is rarely the most important audience — what to include anyway.
-
What a productive pre-mediation call actually does — setting process expectations, addressing logistics, obtaining pre-commitments, and previewing the questions that matter on mediation day.
-
The illusions about in-person mediation that the pandemic dispelled — the face-to-face read, the paper-friction myth, the discomfort fallacy — and why some mediators settled more cases remotely than they ever did in person.
-
Two practical frameworks — people-based and structure-based — for deciding format, with the reminder that case value isn’t a factor.
-
The client conversation that determines mediation-day headspace — what to expect, how to talk about value, how to handle the bottom-line trap, and how authority requests actually work inside a corporation.
Mediation Day
Mediation Day works through the day itself — assessing the mediator you’ve been given, understanding the structure of the morning, and what’s actually happening during the factual discussion phase. The published posts cover the opening hours of the day; additional posts in this chapter are in active drafting and will be added as they publish. Read these if you’re preparing a client for what to expect, or trying to understand why your mediator does what they do.
-
The three buckets of California mediators — former judges, former practitioners, professional mediators — what panel affiliation does and doesn’t tell you, and what to figure out about a mediator in the first hour of a case if you’ve never worked with them before.
-
The five-phase structure I run a single-plaintiff day on — Foundation, Deep Dive, Pivot, Grind, Finale — and what the Foundation phase needs to do before substantive discussions can begin.
-
The opening factual discussion isn’t a rehash. It’s where trust gets built, where the narrative gets clarified, and where the parties start to recognize the case in the other room without being told they have to.
-
Damodaran's framework for handling uncertainty, applied to the mediation room — denial, heuristics, and herding in Part 1, and why how a party handles the unknown matters as much as their position.
-
The second half of Damodaran's uncertainty framework applied to mediation — outsourcing, divine intervention, and confrontation — plus the category his asset-valuation model never needed: the party who treats uncertainty not as a problem to solve but as the point.
-
Trial doesn't tell a party they were right — it assigns liability. This installment covers BATNA, the time-and-energy cost of the long road to a verdict, and why even a win rarely delivers the vindication a client came for.
After the Mediation
After the Mediation will cover what happens once the day ends — drafting the settlement, finalizing the agreement, court approval where required, and the practical follow-through that often determines whether a deal actually closes. Plenty of mediations produce a handshake that never becomes an executed settlement; this chapter is about closing that gap. Posts are in development and will be added here as they publish.
Special Considerations: Class Mediations
Class mediations are different. The substantive law drives different cultural norms, the briefs include damages models, the math is more transparent, the courts pay closer attention, and the timeline runs longer. This chapter will treat class and PAGA mediations as their own subject — what changes, what doesn’t, and how to navigate the additional layer of court scrutiny that comes with class settlements. Posts are in development. See Why Virtually Every Class Action Should Be Mediated in Foundations for the underlying argument.
Appendix: Practical Tools
Practical Tools collects working artifacts — spreadsheets, prompts, frameworks — that complement the guide. These are tools I use in my own practice and have made available for download. The appendix grows as new tools are released.
-
Two free working tools: a Google Sheet that tracks offers, brackets, midpoints, and bracket-of-bracket midpoint gymnastics; and an 8-step prompt-building guide that uses a Sandwich Method to ensure LLMs read your data but follow your rules.