Labor and Employment Law

Ca. Labor & Emp't Rev. Volume 35 No. 5 September 2021


By Alan R. Berkowitz

Alan R. Berkowitz is a mediator with Judicate West, specializing in individual and class action cases. He has resolved hundreds of cases involving all types of employment matters, including wage and hour class actions and PAGA claims, many of which resulted in seven-to-eight-figure settlements. Before retiring from the practice of law to become a full-time mediator, he was a partner with Bingham McCutchen, managing partner with Schachter Kristoff Orenstein and Berkowitz, and Regional Attorney at the NLRB, Region 32. He has tried over 50 cases in state and federal courts and administrative agencies on behalf of both defendants and plaintiffs.


As advocates, lawyers are well aware of what constitutes a win or a loss in litigation, but often have given little thought as to what those terms mean in settlement negotiations. The emotions surrounding litigation outcomes are powerful, ranging from sheer joy to bitter disappointment. And emotional memory is long lasting. Litigators are constantly seeking the high of a win and avoiding the ego crushing disappointment of a loss. So how does an advocate who has spent months, or even years, litigating a case approach a mediation without feeling that conceding anything to the other side is somehow a loss?

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