Labor and Employment Law

Ca. Labor & Emp't Rev. March 2021, Volume 35, No. 2

Mediation Tips And Arbitration Bits

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.


Over the years there have been numerous studies of lawyers’ ability to accurately predict case outcomes and value. Although different methodologies have been used in various studies, essentially comparisons were made between initial predictions or settlement demands and offers and the ultimate case outcome. In all studies that this writer is aware of, the conclusions are the same-lawyers are not particularly good at predicting outcomes. For the most part lawyers were overconfident in their predictions, failing to achieve their expressed goal in a significant percentage of cases.1

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