Contact Us for More Information

ERISA Mediation Strategies

Posted by Marc S. Schechter | Aug 23, 2017 | 0 Comments


Mediating ERISA disputes has unique challenges compared to mediating other types of civil claims. Some attorneys representing the employer use mediation as a way to flex their litigation muscle, coming down hard on the employee. However, mediation should be used as a way to resolve a complaint before it goes further, saving the employer time and money.

When an employee has a dispute with their employer's group insurance or retirement benefits provider over benefits, they generally have to exhaust the Plan's appeals process before they can file a claim. If the dispute is not resolved, the employee may file an ERISA lawsuit seeking coverage, reinstatement, benefits or other limited remedies available under ERISA.

Mediation involves both parties presenting their case before a neutral third party to facilitate settlement. In some cases, the plaintiff will not have a strong case but they are still intent on pursuing their claim. However, a strategic approach to the mediation process may allow the claim to be settled without having to continue spending time and money on litigation.

Many employees pursue an ERISA-based claim because they feel they were treated unfairly and want someone to take their complaints seriously. They want to have their “day in court” before a jury. However, the employee may soon find that ERISA litigation is unlike other civil litigation and they will never get to present their case to a jury as ERISA provides for bench trials only.

ERISA claims have limited discovery, the plaintiff generally does not get to call witnesses, introduce evidence, or cross examine the other party. Additionally, the remedies in an ERISA case are generally limited to benefits due or other equitable relief. Even without a legal basis for recovery, the plaintiff may want to use litigation as a way to tell their side of the story or call out what they see as unfair treatment.

In many cases, allowing the plaintiff to tell their side of the story may go a long way to facilitating a settlement. This may be the first time they get to talk face-to-face with someone representing the other side. After months of frustration dealing with a benefits administrator over the phone, through emails, or letters, getting the chance to be heard can be an important step in bringing their claim to a close.

The defendants should also be comfortable taking their time with the mediation process. Making attempts to speed up the process or coming out with a final settlement offer too early may signal to the other side that the plaintiff's claim is stronger than it really is. Patience can be a virtue in mediation strategy.

The parties should also use the mediator as a facilitator and not merely as a way to communicate to the other side. The role of the mediator is to try and help the parties come to an agreeable settlement. The mediator's experience in dealing with ERISA claims can be extremely useful to provide a starting point to negotiations, guide discussions, and gauge progress.

If you have any questions about ERISA litigation or mediation strategies for your company, the law firm of Butterfield Schechter LLP is here to help. We are San Diego County's largest law firm focusing its law practice on employee benefits law. Contact our office today with any questions on how we can help you and your business succeed.

About the Author

Marc S. Schechter

Marc Schechter specializes in the areas of employee benefits, ERISA, and business matters.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Retirement Plans

We help establish a customized plan that meets regulatory requirements as a tax qualified plan. Following implementation, our attorneys can assist clients and their plan administrator with regular reviews and updates to help with regulatory compliance for the plan's operation, and continued effectiveness in meeting the client's specific goals.


We are dedicated to employee ownership. When you come to us for ESOP services, you receive influential legal counsel who stand beside you to help you stay informed, in compliance, and abreast of the latest developments-all to help you realize your plan goals as fully and effectively as possible.


A QDRO is a specially designed court order that is required for the division of retirement benefits in a family law case. Many family law attorneys do not possess the expertise necessary to divide retirement benefits or stock options upon divorce. We have extensive experience in dividing qualified plans, government plans, IRAs and stock options between the employee spouse and non-employee spouse.

Butterfield Schechter LLP provides the information in this website as a service to its clients and visitors to the site. This website is for information purposes only and is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The information in this website is provided "as is," and while the information in this website is updated periodically, additional facts or future developments may affect subjects contained herein, and no guarantee is given that the information provided is correct, complete, or up-to-date. Seek the advice of professional counsel before acting or relying upon any article, form, or information in this web site. To ensure compliance with the requirements imposed by the United States Treasury and the Internal Revenue Service, we inform you that any federal tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing, or recommending to another person any transaction or matter addressed herein. Butterfield Schechter LLP has endeavored to comply with all known legal and ethical requirements in compiling this website. In the event that this communication does not conform with any laws or regulations of any state or country in which it may be received, Butterfield Schechter LLP will not accept legal representation based on this communication from a person in such a state or country. Electronic mail is provided as a convenience in communicating with the attorneys at Butterfield Schechter LLP. Contact by e-mail does not alone create an attorney-client relationship. Please remember Internet e-mail is not secure and messages sent to the firm or any of its employees or attorneys should not contain sensitive or confidential information. Thank you for visiting our site.