I like to try cases to judges and juries but my enjoyment almost always comes at great out-of-pocket expense to my employer-clients in terms of cost of defense.  The reality of any civil practice is that most cases will settle or be disposed of short of trial  When it comes to settling employment disputes, the earlier settlement are reached, the earlier the employer has certainty over the outcome and can focus its attention operating its business. 

Jon Hyman is an employment lawyer in Ohio who recently opined that while an employer’s motion for summary judgment is pending (and before can be an ideal time to leverage a settlement because the Plaintiff runs the risk of having the case disposed before trial and the employer risks increased settlement demands or an eventual trial if the motion for summary judgment is denied.  I can’t disagree with Jon’s assessment and he makes a good point.  However, in my experience I frequently encountered situations where the parties are so enamored by their summary judgment briefing (the employer just "knows" (read believes) the motion will be granted and the employee is equally convinced it will be denied) that that parties appear to be evaluating different cases making settlement more difficult (i.e., the employer believes the case is frivolous and the employee expects to try the case to a jury of his or her peers).

I once heard a plaintiff’s lawyer I respect tell a defense lawyer that he would not agree to a mediation date until the employer’s motion for summary judgment was heard by the court.  The plaintiff’s lawyer told me later than so long as the employer has a motion for summary judgment pending the employer wouldn’t see the "value" in his client’s case.  Therefore, the plaintiff’s lawyer wanted, even insisted, that the employer’s motion for summary judgment heard and ruled on before going to mediation.  Eliminating the uncertainty in whether a dispositive motion will be granted or not certainly ensures the parties are evaluating the "same" case and increases the likelihood that the case will be settled.

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