Just as all cases differ, all mediations will differ. The one thing that Judge Winikow has learned as both a judge and a lawyer is that employment cases have their own rhythms, which sets them apart from other civil cases and which requires unique game plans tailored to the specific dynamics of the case. Some cases are driven by lawyers, and some cases are driven by parties. Some cases are ripe for settlement, and some cases need to be guided into a settlement phase. Through preparation and pre-mediation discussions, Judge Winikow will work with the parties and lawyers to explore different approaches in order to maximize the chance of success.
If you attended one of Judge Winikow's settlement conferences at the Los Angeles Superior Court, you will know that they were often non-traditional -- especially for a court-ordered mandatory settlement conference. Judge Winikow disfavored the bombastic and often ego-driven approach of a traditional judicial settlement conference while he was on the bench, and you should not expect this overly judicial style in private mediation. Yet, there are situations where being a former judge may matter to one or more parties, and this tool remains in Judge Winikow's toolbox. One simply cannot discount having an insider's view of judicial decision-making, especially within the Los Angeles Superior Court, if the parties truly want an independent evaluation of their dispute.
INITIATING THE MEDIATION: Parties should contact Judge Winikow directly to find out about rates, availability or any other inquiry. Email is the preferred method of communication. When initiating a mediation, please provide the name, address and contact information for all counsel.
LOCATION: Judge Winikow will conduct the mediation remotely via Zoom. Zoom software allows for complete privacy and separate breakout rooms for each party.
PERSONS ATTENDING THE MEDIATION: Mediation is only effective if parties necessary to a decision participate. There should be NO SURPRISES about who is attending the mediation session. There may be situations where parties attending the session have only limited authority to settle, and this needs to be DISCLOSED in advance.
BRIEFS: Parties must submit briefs at least one week prior to the mediation, and electronic copies are strongly preferred. Judge Winikow's preference is for candor, and for confidential briefs, but parties are free to share their briefs with one another. Briefs should be limited to ten pages, and should focus on the facts of the case, not necessarily the law (unless it is a novel issue), and should discuss prior settlement discussions and obstacles to settlement as well as the procedural posture of the case. DO NOT REPURPOSE A SUMMARY JUDGMENT BRIEF AS A MEDIATION BRIEF; IT MAY SAVE YOU SOME TIME, BUT IT IS FAR LESS HELPFUL TO THE MEDIATOR.
Parties may wish to submit some evidence along with their briefs. In particular, signed witness statements can be very helpful. If you are going to refer to evidence in your brief, it may help to include a copy of the exhibit -- with highlights -- in advance of the session. If you are going to submit evidentiary support, please do so in a separate document and/or electronic file from the brief.
FOLLOW UP: Most cases should settle, but not all of them will. If the parties cannot resolve the dispute at the mediation session, Judge Winikow will conduct reasonable follow up through phone and/or email to try and work through lingering issues.
CONFIDENTIALITY: Confidentiality is an essential element of mediation, and the parties will be required to execute a confidentiality agreement at the start of all mediation sessions. Regardless of whether communications are made prior to the session, at the session or following the session, all communications with Judge Winikow will be treated as confidential, subject to any and all privileges attaching to settlement discussions and the mediation process.