McNair v. Berg

Filing 8

ORDER denying 7 Plaintiff's Motion to Exclude Case from Mediation. Signed by Magistrate Judge William G. Cobb on 5/23/2017. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CLARENCE MCNAIR,
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Plaintiff,
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vs.
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L. BERG,
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Defendant.
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______________________________________)

3:16-cv-00487-MMD-WGC
ORDER

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Before the court is Plaintiff’s First Motion to Exclude Case from Mediation (ECF No. 7).
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The history of this case reflects the court screened Plaintiff’s complaint and allowed Plaintiff’s
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retaliation, excessive force, and failure to protect claims to proceed against Defendant Berg. (ECF No. 5
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at 7.) The court ordered a ninety-day stay on further filings and directed the parties to participate in a
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settlement conference. The court indicated it would refer the case to the court’s Inmate Early Mediation
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Program. In the meantime, Plaintiff’s obligation to pay the $350.00 filing fee, either in full or in
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installments if Plaintiff was granted in forma pauperis status, was stayed.
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The court’s screening order, however, allowed a party to seek to remove the case from the inmate
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mediation program. (Id. at 8.) Plaintiff filed a timely request to exclude the case from the Inmate
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Mediation Program. (ECF No. 7.) Plaintiff’s rationale is that Plaintiff requests his case be exempt from
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the mediation program “because Plaintiff has reasently (sic) attended at least 3 different early mediation
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conferences for 3 different lawsuits, and all three mediations were completely counter productive.” (Id.
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at 1.)
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In the court’s extensive experience with the mediation and settlement conference process, parties

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would frequently express pessimism that their case had any chance of settlement. Yet, on numerous

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occasions, the parties were indeed able to come to an accord and successfully resolved their dispute.

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Certainly not all of the “unsettle-able” cases settled, but many do. One fact that is fairly undisputable is

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that if the parties do not at least undertake a settlement dialogue, the case will most definitely not settle.

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Even if a case does not settle, there is nevertheless a benefit to the parties by exploring and

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addressing the strengths and weaknesses of their claims and defenses. From the perspective of the

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governmental defendants, the discussions may shed light on potentially errant policies, decisions,

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procedures or activities and possibly allow corrective action to be undertaken. And from the standpoint

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of an inmate Plaintiff, he may be educated about the technical nuances of § 1983 litigation which may

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cause him to re-evaluate the propriety of his claims. In either event, it cannot be overlooked that an early

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settlement of an inmate’s case allows him to avoid immediately incurring the expense of the $350.00

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filing fee which would otherwise have to be paid to the court if the case were to proceed in the absence

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of mediation.

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Therefore, to further the interests of justice, this matter will proceed to the Inmate Early
Mediation Program in accordance with the court’s screening order (ECF No. 5).1

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Plaintiff’s First Motion to Exclude Case from Mediation (ECF No. 7) is DENIED.

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IT IS SO ORDERED.

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DATED: May 23, 2017.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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It is also a maxim of successful settlement conferences that a party not come to negotiations with a
preconceived notion of a “bottom line” or a “top dollar” figure. In that regard, Plaintiff’s identification of a
demand number well in advance of the mediation (ECF No. 7 at 2) and prior to hearing Defendant’s version of
the facts is counterproductive.
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