In this guide9 sections
At a California employment or workers’ comp mediation, you, your lawyer, the employer or insurer and their lawyer meet with a neutral mediator, usually for a full day, in person or by video. Most of the day is spent in separate rooms while the mediator carries offers back and forth. If you reach a deal, you sign a short written agreement before you leave. In a workers’ comp case, that agreement still has to be approved by a workers’ comp judge before it is final.
Key takeaways
- Before mediation, your lawyer must give you a one-page written disclosure about mediation confidentiality and get your signature (Evidence Code §1129).
- Most of the negotiating happens in private “caucuses,” with the mediator moving between rooms.
- What is said and written for the mediation is generally confidential (Evidence Code §1119), and the mediator generally can’t report opinions to the judge (§1121).
- A signed term sheet that says it is binding or enforceable can be enforced (Evidence Code §1123), so read it carefully before signing.
- Workers’ comp settlements need approval by the appeals board or a workers’ comp judge (Labor Code §5001).
Before the mediation
A lot of the work happens in the weeks before. Expect your lawyer to:
- Pick the mediator with the other side and schedule a date, often a full day.
- Write a mediation brief that summarizes the facts, the law, the evidence and the damages or benefits at stake.
- Give you the confidentiality disclosure. Under Evidence Code §1129, your lawyer must give you a printed, one-page disclosure about mediation confidentiality and get your signed acknowledgment.
- Talk numbers with you: a realistic target, a walk-away point, and the reasons for both.
Bring anything your lawyer asks for: pay stubs, medical reports, a list of your losses or medical expenses, and the questions you want answered. For workers’ comp, that usually includes the latest medical-legal report and your permanent disability rating. Our workers’ comp benefits calculator can help you understand the numbers before you go.
Who will be there
| Employment case | Workers’ comp case |
|---|---|
| You and your lawyer | You (the injured worker) and your lawyer |
| The employer’s lawyer | The insurer’s or employer’s defense lawyer |
| An employer representative, such as an HR or company officer, and sometimes an insurance representative | A claims adjuster, in person or by phone, with authority to settle |
| The mediator | The mediator, if private mediation is used |
Ask your lawyer to confirm someone with real settlement authority will be present or reachable. Without that, the day can stall.
What happens during the day
- Arrival and setup. Each side gets its own room, physical or virtual. Many mediations now take place by video.
- Opening session (sometimes). The mediator may bring everyone together to explain the ground rules and confidentiality, and each side may give a short statement. Many mediators skip the joint session, especially when emotions run high.
- Private caucuses. The mediator meets with each side separately, asks questions, points out risks and carries offers between rooms. Ask the mediator what they will and won’t share with the other side.
- Offers and counteroffers. First numbers are often far apart. Movement usually comes slowly, and it is common for the gap to close late in the day.
- Non-money terms. In employment cases, these may include a neutral reference, how the departure is described, payment timing and the scope of the release.
- Mediator’s proposal (sometimes). If the sides get stuck, the mediator may propose a number that each side accepts or rejects privately. A deal happens only if both accept.
Example (hypothetical): Maria, a medical assistant, claims she was fired for complaining about harassment. Her employer opens at a fraction of her demand. Over the afternoon, the mediator explains to each side what a jury could find, the offers move, and the mediator suggests a number. Both sides accept privately, and the lawyers write up the terms.
If you reach a settlement
The lawyers usually draft a short term sheet or memorandum of settlement on the spot, and everyone signs it. Under Evidence Code §1123, a signed written settlement reached in mediation can be used to enforce the deal if it says it is enforceable or binding. In a pending lawsuit, the court may enter judgment on a signed settlement (Code of Civil Procedure §664.6). A longer settlement agreement often follows.
Read the terms closely: the amount and payment date, the release and any waiver of unknown claims, confidentiality, and whether your workers’ comp case is included. California generally voids terms that stop you from disclosing the facts of sexual harassment, workplace harassment or discrimination claims and retaliation for reporting them (Code of Civil Procedure §1001), and most no-rehire clauses (§1002.5). Our list of mediation mistakes to avoid covers what to check.
Extra steps in a workers’ comp case
A workers’ comp release is not valid until approved by the appeals board or a workers’ comp judge (Labor Code §5001). The judge reviews whether a Compromise and Release or Stipulations with Request for Award is adequate and may approve it, disapprove it or set a hearing (8 CCR §10700). A Compromise and Release must be signed before two disinterested witnesses or a notary (Labor Code §5003). See your workers’ comp settlement options and how long until a settlement is paid.
If the case doesn’t settle
Your case goes back on track toward trial, arbitration or a workers’ comp hearing. What was said and written for the mediation generally stays confidential and can’t be used as evidence later (Evidence Code §1119), and the mediator can’t share opinions with the judge (§1121). Evidence that exists independently, such as your pay records, can still be used (§1120). Many cases settle later, sometimes with the mediator’s continued help.
Tips for the day
- Plan for a long day and keep your schedule clear.
- Discuss strategy only with your lawyer, in your own room.
- Expect a low first offer; it is rarely the last.
- Ask what each term means before you sign.
- Don’t post about the mediation online or discuss it with coworkers.
Frequently asked questions
How long does mediation take?
Many employment mediations are scheduled for a full day. Some settle earlier; others continue by phone or email in the following days.
Do I have to talk to the other side directly?
Usually not. Most negotiation happens through the mediator in separate rooms, and your lawyer speaks for you.
Is a court settlement conference the same as mediation?
No. A court’s mandatory settlement conference is run under court rules, and California’s mediation confidentiality chapter doesn’t apply to it (Evidence Code §1117). In workers’ comp, the mandatory settlement conference is held before a workers’ comp judge.
Can I change my mind after signing?
For employment claims, assume a signed agreement is binding. A workers’ comp settlement isn’t valid until the judge approves it, but once approved it is generally hard to undo.
Where can I learn more?
See what to expect at mediation and when mediation makes sense. Injured workers without a lawyer can get free information from the DWC Information and Assistance Unit.
Talk to a California employment lawyer
Employees First Labor Law represents workers exclusively in employment and workers’ compensation cases, including mediations. We offer free virtual consultations to help you prepare for a mediation or review a proposed settlement. Contact us online or call (310) 853-3461.
This article is general information about California law as of 2026, not legal advice for your situation. Reading it does not create an attorney-client relationship.
