Small v. The State of New York et al

Filing 77

DECISION AND ORDER granting 74 Motion to Compel Defendants to Participate in Mediation. Signed by Hon. Jeremiah J. McCarthy on 10/26/15. (DAZ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
PAMELA S. SMALL,
DECISION AND ORDER
Plaintiff,
v.

12-CV-01236-WMS-JJM

THE STATE OF NEW YORK,
et al.,
Defendants.
_____________________________________
Before me is plaintiff’s motion of to compel defendants to participate in
mediation [74].1 For the following reasons, the motion is granted.

BACKGROUND
Only the relevant facts will be discussed. This case was referred to mediation in
accordance with §2.1A of this court’s Plan for Alternative Dispute Resolution (“ADR Plan”). At
the initial mediation session on October 28, 2014, defendants indicated that they “were not
prepared to mediate at that time because they needed discovery before they would be able to do
so”. Shoemaker Affirmation [74], ¶9. Counsel discussed at the time that defense counsel “had no
authority to settle the matter” and that “the parties could attempt mediation again after some
discovery had been conducted”. Id., ¶10.
Now that discovery has occurred, defendants DOCCS, Conway and Dolce refuse
to mediate, arguing that mediation “will be futile because the parties are diametrically apart,

1

Bracketed references are to CM/ECF docket entries.

even after extensive discovery, regarding their positions on liability and damages”. Benitez
Declaration [76], ¶3. Instead, they plan to “pursue motions for summary judgment”. Id., ¶4. They
also accuse plaintiff of violating the confidentiality provisions of the ADR Plan by disclosing
communications which occurred at the initial mediation session in support of her motion to
compel. Id., ¶¶6-7. Defendant Cuer states that he “has no objection to mediation per se, but he
will not financially contribute any funds towards a possible mediated settlement”. Wujcik
Affidavit [75], ¶7.

ANALYSIS
Although §5.10 of the ADR Plan generally provides for confidentiality of
mediation proceedings, §2.3(A) allows a party to “report to the assigned Judge any failure to
attend an ADR conference, to substantially comply with the ADR Referral Order, or to otherwise
participate in the ADR process in good faith”. Therefore, plaintiff’s motion to compel mediation
does not violate §5.10 of the ADR Plan.
“With the heavy caseloads shouldered today by federal and State courts alike,
mediation provides a vital alternative to litigation. The benefits of mediation include its
cost-effectiveness, speed and adaptability.” Fields-D’Arpino v. Restaurant Associates, Inc., 39 F.
Supp. 2d 412, 417 (S.D.N.Y. 1999). Experience has shown that even where parties believe that
there is no possibility of settlement at the outset of mediation, they may change their minds
during the process. Therefore, while the court “cannot force litigants to settle an action, it is well
established that a court can require parties to appear for a settlement conference”. Bulkmatic

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Transport Co. v. Pappas, 2002 WL 975625, *2 (S.D.N.Y. 2002); In re A.T. Reynolds & Sons,
Inc., 452 B.R. 374,382 (S.D.N.Y. 2011).2
Accordingly, the parties shall participate in at least one additional mediation
session before mediator Joseph Saeli, Esq.. The mediator shall decide all details concerning the
mediation, including timing, who shall attend, and method of attendance (i.e., personal or
telephonic). Pending conclusion of the mediation, all other pretrial deadlines and proceedings
(including defendant Cuer’s motion [64] to extend the deadlines of the Second Amended Case
Management Order) will be held in abeyance.

CONCLUSION
For the reasons and upon the conditions stated herein, plaintiff’s motion to compel
mediation [74] is granted.

SO ORDERED.
Dated: October 26, 2015
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge

2

See ADR Plan, §5.8(G): “All parties and counsel shall participate in mediation in good
faith. Failure to do so shall be sanctionable by the Court.”

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