Class Action Mediation

The same complaint is worth different amounts at different moments. Before certification, the defendant is buying certainty against a motion it might defeat; after certification, the leverage inverts and the discount for certification risk disappears. Arbitration agreements with class waivers shape the class itself, since post-Iskanian and Epic Systems a signed-agreement subgroup may be carved out of any realistic class, and the parties need a shared view of how many putative members actually remain.

Theory matters as much as timing. Meal-and-rest cases rise or fall on policy language and time records under Brinker, and most modern class cases carry a PAGA overlay with its own math and its own approval track, which I cover on the PAGA mediation page.

Class settlements are generally based on a damages model that hinges on the number of workweeks, headcount, base and regular rates of pay, and assumed violation rates, theory by theory. That model is then discounted honestly: for certification risk, for the merits, for decertification and appeal, and for the time value of a recovery that is otherwise years away. I ask for the data inputs before the session (class size, workweek and pay-period counts, separation numbers, and average rates) so I can understand the numbers myself rather than refereeing competing models in the blind.

The model has a second job: California courts reviewing a class settlement expect a record that compares what the class is receiving against what the case was realistically worth, the analysis Kullar v. Foot Locker requires. A mediation that produces a number without producing that comparison has left the hard part undone. Fees, costs, administration, and any service awards get layered on explicitly, so that the gross, the net to the class, and the per-workweek figure are all understood in the room, not discovered at preliminary approval.

A class deal runs a gauntlet after the handshake: preliminary approval, notice, final approval, and sometimes an objector or an appeal. The memorandum signed at the session should anticipate all of it. The essential terms should be complete enough that the long-form agreement and the approval motion are drafting exercises rather than second negotiations, supplying whatever the record needs about how the settlement was reached.

Preparation follows the same logic. Class contact information obtained through the standard opt-out notice procedure, agreed sampling protocols, and exchanged damages models before the session make the day about judgment instead of data entry. My brief guidelines list the class-specific data I ask each side to address, and my process page describes how the day itself runs. Come with the decision-makers, and where coverage applies, the carrier, holding real authority.

The fee for class and other representative matters is a flat $12,500, all-inclusive; details are on the fee schedule. For the wage-and-hour theories underneath most of these cases, see wage and hour mediation.