“If I retained an attorney to represent me in negotiation, but not in litigation, would that include mediation?”

Question: I have retained an attorney to assist me in resolving an employment dispute. The agreement says that it includes efforts in negotiation, but not litigation. Would this agreement also include mediation, or is that a kind of litigation? 

Los Angeles, California

Answer: Dear Richard: I find your question quite interesting. 

I would say that almost every lawyer I know would consider mediation to be a kind of negotiation, not a kind of litigation. For this reason, I think that “mediation” would be included in your “no litigation” retainer agreement with your attorney.

As you may know, mediation is a process whereby both “sides” agree to sit down together, usually with an attorney and a neutral third party (often a retired judge) and try to resolve things in one day. Everything about Mediation is “voluntary,” meaning that the decision to go, the decision to try, the decision to remain, and the decision to accept a settlement is always voluntary. That’s more like negotiation, and less like litigation. 

As a general matter, I really like mediations. To me, they are like “full frontal negotiation.” I resolved a difficult matter in mediation just a few weeks ago. One day of discussions resolved the matter, whereas if it became litigation, it probably would have lasted for years. 

By the way, I’ve written an entire newsletter on this subject, which you can read by clicking [here].

The most important thing to me, though, is that you and your attorney are on “the same page” in all respects. I’d call him or her and have a frank talk and try to make sure no differences arise unnecessarily.

Hope that helps. Good luck to you.

My best, Al Sklover

P.S.: If you would like to obtain a list of five or more experienced, “employee-side” employment attorneys in your city, just [click here]. Delivered by Email – Instantly!

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