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What to Expect at Employment Mediation in California

By Jonathan LaCour · October 8, 2026 · Mediation

If you are wondering what to expect at employment mediation in California, here is the short answer: you will spend one long day, usually in a separate room from your former employer, while a neutral mediator carries offers back and forth between the sides. Nothing is decided unless you agree to it. What is said is confidential, and if the case settles, you sign a short written agreement before you go home that makes the deal binding.

Most California employment cases settle, and most of those settlements happen at mediation. Knowing how the day works, what the settlement papers will say, and how to prepare emotionally makes a real difference in how you decide. I see the process from both chairs: I have spent my career as a plaintiff-side trial lawyer, and I also serve as a mediator through AMAJ. This guide is for employees and families who want to walk in knowing what is coming.

What employment mediation is, and what it is not

Mediation is a confidential negotiation run by a neutral third party, usually a retired judge or an experienced employment lawyer. The mediator does not decide who is right and cannot force anyone to settle. Their job is to help both sides see the risks of continuing and find a number everyone can accept.

That is very different from the alternatives:

Private mediation vs. court-ordered mediation

Most employment mediations in California are private: the lawyers agree on a mediator, schedule a full or half day, and the parties pay the mediator's fee (in employment cases, the employer often covers most or all of it). Some courts also order or strongly encourage mediation or a settlement conference before trial. A court-run session may be shorter and handled by a volunteer panel mediator or a judge. The core rules are the same: it is voluntary to settle, and the discussions are confidential.

What to expect on the day of employment mediation

Every mediator runs the day a little differently, but a typical California employment mediation follows this arc.

Before the day: the mediation briefs

About a week ahead, each side's lawyer sends the mediator a confidential brief laying out the facts, the law, the damages, and the obstacles to settlement. Your lawyer may share some or all of your side's brief with the other side. As a mediator, I also hold pre-mediation calls with both sides, so I understand what really matters to each party before anyone walks in the door.

The opening

Joint opening sessions, where everyone sits in one room, have become less common in employment cases. More often, the mediator meets your team privately first to hear your story and ask questions. If there is a joint session, your lawyer will tell you in advance whether you are expected to speak.

Caucuses and separate rooms

For most of the day you will sit in your own room (or a private video breakout room) with your lawyer. The mediator moves between rooms. These private meetings are called caucuses. Expect a lot of waiting. The mediator may spend an hour with the other side while you sit. That is normal and often a good sign.

Offers and counteroffers

Negotiation usually starts far apart. The employee's first demand is high; the employer's first offer can feel insulting. Each side then moves in rounds. The size of each move is a signal, and your lawyer will explain what each one means. Do not judge the day by the first number.

The mediator's proposal

If the sides stall, the mediator may make a mediator's proposal: a single number and terms the mediator believes both sides can accept. Each side answers yes or no confidentially to the mediator. If both say yes, the case settles. If either says no, neither side learns how the other answered.

Why mediation often runs late

Many mediations go into the evening. Decision-makers need time, insurance adjusters must get authority, and people often make their best moves only once they feel the day is ending. Plan for a long day and do not book anything that evening.

Mediation confidentiality under California law

California has some of the strongest mediation confidentiality protections in the country. Under Evidence Code § 1119, what is said and written for the purpose of mediation generally cannot be used as evidence later in the case. That allows everyone to speak candidly about weaknesses without it being used against them at trial.

Because those protections are so broad, they can also limit what you can later prove about your own lawyer's conduct during the mediation. For that reason, Evidence Code § 1129 requires California lawyers to give clients a short written disclosure explaining mediation confidentiality, and to have the client sign it, before the client agrees to participate. If your lawyer hands you this form, read it, ask questions, and sign it. It is routine.

How a mediation settlement becomes binding

A handshake at 7 p.m. is not enough. A settlement reached at mediation should be put in writing before anyone leaves, usually in a one- or two-page term sheet or memorandum of settlement. Two points matter:

A longer, formal settlement agreement usually follows in the next few weeks, but the term sheet is what locks in the deal.

Typical settlement terms in a California employment case

Beyond the dollar amount, expect to see:

Limits on confidentiality for harassment and discrimination claims

Under Code of Civil Procedure § 1001, a settlement agreement in a case filed in court or before an agency generally cannot prevent you from disclosing factual information about claims of sexual assault, sexual harassment, or workplace harassment, discrimination, or retaliation under the Fair Employment and Housing Act. You can ask that your own identity be kept confidential, and the amount paid can still be kept confidential. Separately, Government Code § 12964.5 requires that non-disparagement and similar clauses in employment-related agreements include language confirming that nothing in the agreement prevents you from discussing or disclosing information about unlawful acts in the workplace. You can read about these protections on the California Civil Rights Department website.

Taxes on employment settlements, in general terms

Most employment settlement money is taxable. The portion for lost wages is usually paid through payroll with withholding and reported on a W-2. Emotional distress and other non-wage damages are generally reported on a 1099 and are taxable as well, unless tied to physical injury. Federal law has an above-the-line deduction for attorney's fees in discrimination and certain other employment cases. Talk with a tax professional before you sign; the allocation is worth getting right.

How to prepare for mediation, practically and emotionally

In my practice, the clients who do best at mediation are the ones who prepared for the day, not just the case.

Excellence is expected, but empathy is required.

That line guides my firm, and it is how I run a mediation room too. Employees are often reliving the worst chapter of their working life. A good mediator respects that while still being honest about risk.

Why a trial lawyer makes a credible mediator

I mediate through AMAJ, a Pasadena-based ADR education and dispute-resolution institute I am spearheading. Because I try cases, including a $2,000,000 jury verdict in a gender discrimination and wrongful termination case, I can speak credibly to both sides about what a jury is likely to do. My full-day mediation is $10,000, all-inclusive. I hold pre-mediation calls with both sides, give an evaluative view when it helps, and follow up after the session until the deal is signed. Learn more on my mediation page, or read my preparation checklist for counsel.

The bottom line on employment mediation

Employment mediation in California is a long, private, voluntary negotiation, and it is where most cases end. Know your numbers, understand confidentiality and the settlement terms, insist on a signed term sheet, and give yourself permission to say yes or no. If you are an employee who needs a lawyer before mediation, or counsel looking for a neutral, contact Jonathan LaCour to start the conversation. You can also learn more about Jonathan and his work at Employees First Labor Law.

Frequently asked questions.

How long does an employment mediation take in California?

Most private employment mediations are scheduled for a full day, roughly eight hours, and many run into the evening. Half-day sessions exist for smaller cases. The time goes to private caucuses, waiting while the mediator works with the other side, and drafting the written term sheet if the case settles before everyone leaves.

Do I have to accept the settlement offer at mediation?

No. Mediation is voluntary. The mediator cannot force you to settle, and you can reject any offer. If no deal is reached, your lawsuit or arbitration continues where it left off. Your lawyer should give you an honest view of the risks of going forward so your decision is informed, but the final choice is always yours.

Will I have to face my former employer at mediation?

Usually not for long, if at all. Most California employment mediations keep the parties in separate rooms or separate video breakout rooms for nearly the entire day. The mediator carries offers between the rooms. If a joint session is planned, your lawyer will tell you in advance and prepare you for it.

Is what I say at mediation confidential?

Generally yes. Under Evidence Code section 1119, statements made and documents prepared for the purpose of mediation are generally not admissible later in the case. Before mediation, your lawyer must give you a written disclosure about these confidentiality rules under Evidence Code section 1129 and have you sign it.

Is a mediation settlement taxable?

Usually most of it is. Lost-wage portions are typically paid through payroll with withholding, and emotional distress damages are generally taxable unless tied to a physical injury. Federal law allows an above-the-line deduction for attorney's fees in many employment cases. Consult a tax professional about your allocation before signing.

Schedule a mediationFull-day employment mediation with Jonathan LaCour through AMAJ — $10,000, all-inclusive, with follow-up until the deal is signed. Mediation details or call 310.853.3461.

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