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Success in mediation depends not only on the skills of the mediator, but on the approach of counsel and clients. Here we look to some of the issues that counsel should consider both before and during the mediation. Though we focus on Title VII- and FLSA-type cases, most of our comments apply universally.

At the outset of a case, counsel should assess the clients’ goals, and what discovery is needed to litigate or negotiate. For Title VII-type claims of discrimination, whether in hiring, pay, promotion or termination, the plaintiff typically needs to show disparate treatment and prohibited causal animus. To demonstrate both, the party can use statistics and otherwise invoke anecdotal evidence, including other employees’ experiences and workplace comments. For harassment or abusive-environment claims, anecdotes are particularly useful. In FLSA-type cases, plaintiff’s counsel needs information on the client’s pay and hours, including any employer documentation. The employer itself will presumably ask for any documents pertinent to plaintiff’s allegations. Apart from documentation, counsel should consider whether one or more targeted depositions would assist negotiations.

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