I’ve long believed that the best time to settle a case is while summary judgment is pending. It’s when both sides have the most risk. The employer has the risk of a jury trial if the court denies the motion, and the employee has the risk of walking away with nothing if the court grants the motion.
Case in point—Webb v. Kentucky St. Univ. (6th Cir. 3/15/12) [pdf]. In Webb, the court granted the employer’s summary judgment motion while the parties were actively mediating the case. On appeal, the plaintiff argued that court abused its discretion in granting the motion while mediation was ongoing, which, in the plaintiff’s words, “makes a mockery of the mediation process.” The court of appeals disagreed:
Where, as here, the district court properly granted the summary judgment motion, the mediation process is not “sabotaged.” Instead, the district court does not waste judicial resources by preparing for trial where no genuine issue of material fact exists and the opposing party is clearly entitled to judgment as a matter of law.
The next time you receive settlement resistance from a plaintiff while a motion for summary judgment pends, you might want to forward a copy of Webb. Maybe it will grease the skids to a resolution.