Motion for Mediation in Robert Zaborski v. Mb Lorimer Llc, Cornerstone Builders Ny Llc| Trellis.Law

On March 03, 2017 a NOTIFICATION FROM COURT - Re: Kings County Supreme Civil Court Mediation Program was filed involving a dispute between Robert Zaborski, and Cornerstone Builders Ny Llc, Mb Lorimer Llc, for Torts - Other (Labor Law) in the District Court of Kings County.

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Dear Attorney/Litigant:
You are receiving this letter because you have a case pending in Kings
County Supreme Court, Civil Term and I wanted to make you aware of an option
that is available to you at this time. This Court has created a Mediation Program
which provides 90 minutes of free mediation with a certified mediator for those
parties who want to take advantage of an alternative to traditional litigation. The
mediations are not conducted by the Court and everything that takes place during
the mediation is confidential. All mediations take place virtually either using
computer conference technology, such as Zoom, or telephone conferencing. If you
are unable to resolve your dispute during the initial free 90-minute session, you
may continue at a rate agreed upon beforehand with the mediator and payable in
equal shares by the parties. If you ultimately are unable to resolve your matter in
mediation, the case is simply restored to the Court calendar.
Why mediate?
Mediation offers the following benefits:
(1) Involves parties actively in resolving their own issues
(2) Improves parties’ satisfaction with the process
(3) Speeds settlement
(4) Reduces stress
(5) Saves money
(6) Improves communication
(7) Improves relationships
(8) Increases compliance with agreements
The court system strongly encourages you to try mediation, especially during
this time when courts are working at a reduced capacity. However, acceptance into
the program requires that both parties voluntarily consent to be referred to
mediation. If you and your opposing party are in agreement that you would like to
try mediation, simply fill out the attached consent form and email it to Kelechi
Acholonu, Esq., ADR Coordinator, at kacholon@nycourts.gov. You will then
receive a referral from the Court directing you to contact a specific mediator and
that mediator’s information.
NOTE: Mediation is NOT appropriate in cases involving a history or fear of
domestic violence or child abuse. If you or someone you know is in this
situation, please visit www.opdv.ny.gov to get help.

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For more information, see the attached Rules and Procedures for
participating in Kings County Supreme Court - Civil Term Mediation Program.
I look forward to working with you to quickly and efficiently resolve your
dispute.
Best,

Kelechi Acholonu, Esq.
ADR Coordinator

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KINGS COUNTY SUPREME COURT, CIVIL TERM
PRESUMPTIVE MEDIATION PROGRAM RULES
I. OVERVIEW
Proceedings in Kings County Supreme Court, Civil Term are eligible for mediation, and may,
at the Court’s discretion, be referred to mediation (the “Program”). The following rules (the
“Program Rules”) shall govern cases referred to this Program. This Program does not preclude
the Court from directing or referring parties to other forms of dispute resolution, including
settlement conferences.
II. STATEMENT OF PURPOSE
Kings County Supreme Court, Civil Term is dedicated to fulfilling its statutory and
constitutional mandate to ensure the just and efficient resolution of all matters that come before
it. The Program has been developed to achieve these ends through early referral to mediation.
Mediation is often faster, more convenient, less expensive and less acrimonious, and often
results in a more mutually acceptable and durable resolution than the normal course of
litigation.
III. DEFINITIONS
Mediation. A confidential dispute resolution process in which a neutral third party (the
“Mediator”) helps parties identify issues, clarify perceptions and explore options for a mutually
acceptable outcome. Mediators do not decide cases but help the parties come to a voluntary,
mutually agreeable decision. In this process, parties have an opportunity to communicate with
each other, focus on what is important to them, and to come up with individually-tailored
solutions. During mediation, each party relates his or her understanding of the dispute. The
Mediator may ask the parties clarifying questions. The Mediator will not give legal advice or
force solutions on the parties.
Mediation often involves non-legal as well as legal issues. Parties are strongly encouraged to
participate in mediation with their own attorneys. Parties may also choose to attend sessions
without counsel, if both litigants agree. Although the mediation process can, and often does,
result in an agreement, whether to reach an agreement, and on what terms, is up to the parties
themselves.
Role of the Mediator. As a trained third party neutral, the Mediator is not a decision-maker.
The Mediator serves as a neutral facilitator of communication and helps the parties reach
resolution of the issue(s) being mediated. In this document, Mediator may also refer to a co-
mediation team where two such neutrals are working together to mediate a case. For the
purposes of these rules, a Mediator is (i) a neutral who has been appointed to the Court’s Roster
(as that term is defined below) and (ii) is mediating a given case pursuant to these Program
Rules and / or the ADR Coordinator. This is distinct from private mediators who mediate cases
outside of these Program Rules.
ADR Coordinator. A person or entity designated by the Court to facilitate the assignment of
court proceedings to mediation in accordance with the Program Rules.

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IV. PROCEDURES
a. All proceedings are eligible for the Program except for the following:

i. Matrimonial Proceedings (see Matrimonial Mediation Program rules)

ii. Guardianship Proceedings

iii. Special Proceedings

iv. Tax Certiorari Proceedings

v. Condemnation Proceedings

vi. Foreclosures (see statutory mediation procedure)

vii. Mental Hygiene Proceedings

b. Timing of Referral to Mediation
i. The Court shall refer parties to mediation as early as practicable.
ii. The need for discovery shall not prevent parties from attending an initial mediation
session unless the Court determines otherwise. Where appropriate, the Court may
allow limited discovery to be exchanged between the parties prior to the mediation.
iii. All parties and counsel shall be prepared to be referred to a scheduled mediation
session upon completion of jurisdiction.
iv. Counsel shall prepare for their case to be referred to mediation by:
1. Informing their clients about the Court’s mediation program and its
expectations and requirements; and
2. Identifying the information and material that may be useful to exchange with
other parties in advance of mediation. Parties should exchange documents at
least ten (10) days before the scheduled mediation.
c. Order of Reference:
i. The Court shall refer matters to mediation by an Order of Reference informing
parties and their counsel that the case shall undergo mediation. The Order of
Reference shall, inter alia:
1. Direct the parties to schedule and participate in mediation with a designated
mediator;
2. Establish the deadline for the parties to complete their mediation session;
3. Establish a date upon which the parties are to return to Court; and

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4. Address any other preliminary matters pertaining to the mediation.
ii. Within five (5) business days of the Order of Reference being issued, parties and
counsel shall advise the ADR Coordinator if they choose to mediate with an outside
mediation provider to be paid by the parties. If the parties elect to use their own
mediator, they shall inform the ADR Coordinator of (a) the name and contact
information of the mediator selected; and (b) the date of the first session (which date
shall be no more than forty-five [45] calendar days from the date that the Order of
Reference is issued).
d. The Mediation Process
i. Pre-Mediation Memoranda: At least ten (10) calendar days prior to the initial
mediation session, each of the parties’ counsel shall provide the Mediator with a
confidential memorandum, limited to three pages, setting forth: essential facts and
client’s contentions about liability; the issues that are in dispute; what the adversary
is expected to claim and the basis for such position; why the parties are at an
impasse; the status of settlement negotiations; suggestions as to how the matter
might be resolved, as well as such other information concerning the litigation
necessary for the effective negotiation and resolution of the issues. No portion of the
confidential memorandum shall be disclosed to the Court nor to any other party to
the proceeding, unless otherwise agreed by the parties. Pro se litigants shall not be
required to provide a pre-mediation memorandum. Instead, they shall speak directly
to the Mediator to answer any pre-mediation questions the Mediator might have.
Such information shall be given to the Mediator and treated with the same
confidentiality as a pre-mediation memorandum.
ii. Pre-mediation Conference Calls: The Mediator may request a conference call
regarding any preliminary matters and may thereafter meet privately with any party
and their respective counsel prior to or during a mediation session.
iii. Location of Mediation Sessions: Mediation sessions will be conducted virtually at
this time, subject to a change in circumstances regarding social distancing and
courthouse availability.
iv. Informed Consent: Either before the first session or at the beginning of the initial
session, the Mediator shall:
1. Explain to all parties that all communications are confidential with narrow
exceptions summarized in Section VI;
2. Explain that any party may, during the initial session or at any time
thereafter, end the mediation process and return to Court; and
3. Request that all parties and attorneys sign the Agreement to Mediate form
which will be returned to the Court.
v. Caucus: At any point in the process either party, their counsel, or the Mediator may
suggest meeting separately with the Mediator in caucus. During the caucus, the

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Mediator may explore how that party views the dispute and the impact of any
proposed solutions. The Mediator shall keep the information discussed in caucus
confidential unless the party permits disclosure.
vi. Time to Complete Mediation: Unless otherwise permitted by the Court, the parties
shall complete the mediation process within forty-five (45) days of receiving the
Order of Reference. If additional time is necessary, parties must submit a stipulation
to the Court to be so-ordered.
vii. Conclusion of Mediation: The mediation concludes upon all parties signing a
written agreement resolving all or some of the matters in dispute, or whenever any
party or the Mediator decides that the process has ended and notifies the others orally
or in writing. Upon the conclusion of the mediation, the Mediator shall email within
twenty-four (24) hours all parties, attorneys and the ADR Coordinator that the
mediation process has ended.
viii. Agreements: Agreements resolving some or all of the legal matters in dispute shall
be signed by all parties and submitted to the Court.
ix. Mediation Report to the Court: Within five (5) business days after the conclusion
of the mediation sessions, the ADR Coordinator shall send a “Mediation Report” to
the Court, copying counsel, that states whether the parties reached partial, complete,
or no agreement on the issues.
x. Mediation Survey: Parties and counsel shall complete a Mediation Participant
Survey and return it promptly to the ADR Coordinator after the final mediation
session. The survey is meant to track participant satisfaction and shall not include
any details of the substance of the case or mediation.
e. Fees and Mediator Compensation
i. The Court itself does not charge or administer fees. The ADR Coordinator does
not charge fees for providing mediation services. Mediators who are appointed to
the Court’s Roster may charge fees for their services, as set forth below.
ii. Initial Session: Court Roster Mediators shall not be compensated for the first ninety
(90) minutes of the initial mediation session under the Program. Mediators shall not
be compensated under the Program for preparation time or administrative tasks.
Unless otherwise provided in these rules or agreed upon by the parties in writing, no
fee, retainer or other payment may be charged or paid prior to the conclusion of the
first ninety (90) minutes of the initial mediation session.
iii. Private Mediation: If the parties elect to seek private mediation, the parties shall
notify the ADR Coordinator in writing. Such election must be endorsed by all
parties and shall identify the name and contact information of the private mediator
and the expected date of mediation. Whether or not the private mediator is on the
Court's Roster, that mediator may negotiate a fee with the parties and need not

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provide the first ninety (90) minutes of the initial mediation session without
compensation.
iv. Payment Disclosure: Either prior to or at the beginning of the initial mediation
session, the appointed Mediator shall disclose to the parties in writing the specific
time at which the non-compensable ninety (90) minutes of the initial mediation
session will conclude. That written disclosure shall advise the parties that any
mediation continued beyond that time will be billed by the mediator at a rate agreed
upon by all parties but not more than $400 per hour. Additionally, the written
disclosure shall be signed by all parties participating in the mediation and Mediator
fees shall be shared by the parties. At the expiration of the first ninety (90) minutes
of the initial session as previously defined, any party may elect not to continue with
the mediation, which decision must be immediately communicated orally or in
writing to the Mediator and all parties. In such situation, despite the fact that one or
more parties have opted out of mediation, mediation can continue as to those parties
desiring to continue, to the extent that the mediation can be meaningful without
participation by the party or parties that opted out. Only those parties who continue
with the mediation beyond the first non-compensable ninety (90) minutes shall be
responsible for payment of the Mediator's fee and expenses, as set forth below in
subparagraph vii.
v. Notwithstanding anything to the contrary in these Program Rules, the Court reserves
the right, under appropriate circumstances, to allow or require Mediators to deviate
from the fee schedule set forth in subparagraph iv above. In such an event, the
Mediator shall provide the parties advance written disclosure of the fee structure
permitted or required by the Court, in the manner prescribed under subparagraph iv
for disclosing billing rates.
vi. Newly-Added Parties: The first ninety (90) minutes in any case referred to this
Program is not extended by reason of the addition of a new party to the case. If a
new party enters the case after the expiration of the first ninety (90) minutes of the
initial mediation session, that party may agree to participate in the mediation subject
to the same terms as the rest of the parties on a fee-sharing basis.
vii. Allocation of Mediation Fees and Expenses: The parties in interest who participate
in mediation beyond the first ninety (90) minutes of the initial mediation session
shall share the costs and fees of the mediator (a) equally, or (b) as agreed in writing.
All fees must be spelled out in writing. Appointed Mediators shall waive the share
of the fee allocable to any party who has been granted permission to proceed in their
case as a poor person pursuant to New York Civil Practice Law and Rules (CPLR)
§ 1101.
viii. Co-Mediation: The presence of more than one appointed Mediator shall not
increase the cost of mediation to the parties. When a case is co-mediated by two
appointed Court Roster Mediators, the Mediators shall split the set hourly rate.

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V. PARTICIPATING IN MEDIATION
a. Party Participation: Parties are required to attend all mediation sessions, whether
remotely or in-person.
b. Attorney participation: Parties may participate in mediation with counsel, if they
choose.
c. Non-Party Participation: If a non-party is invited to participate in the mediation, which
participation must be agreed to by the parties and the Mediator, the Mediator shall obtain
the participating non-party's written consent as to confidentiality and any other matters
requested by the parties, as facilitated by the Mediator.
d. Screening: Cases shall be screened for appropriateness for mediation by the Court and
the ADR Coordinator.
e. Opting-Out: A case otherwise subject to mediation may be exempted from such
mediation upon a showing of good cause. Applications to opt out of mediation may only
be by order to show cause or motion on papers returnable prior to the assigned date of
mediation, or by oral application to the Mediator under circumstances wherein further
mediation would likely prove unsuccessful.
f. Good faith participation. The parties and their counsel shall participate in the mediation
process in good faith and cooperate with all reasonable requests made by the Mediator
and/or the ADR Coordinator.
g. Compliance: Failure to comply with these Program Rules may subject the offending party
or attorney to sanctions, including but not limited to sanctions under 22 NYCRR 130.
VI. CONFIDENTIALITY
a. What happens during a mediation session with a Mediator shall be confidential and, except
as otherwise provided, any document prepared, or communications made, by parties, their
counsel or a Mediator for, during, or in connection with the proceeding shall not be
disclosed outside its confines by any participant. No party to the proceeding shall, during
the action referred to mediation or in any other legal matter, seek to compel production of
documents, notes, or other writings prepared for or generated in connection with
mediation, or the testimony of any other party or the Mediator concerning
communications made during the proceeding. A settlement, in whole or in part, reached
during mediation shall be set forth in a writing signed by all parties affected or their duly
authorized agents. Documents and information otherwise discoverable under the CPLR
shall not be shielded from disclosure merely because they are submitted or referred to in
mediation.
b. Notwithstanding these confidentiality provisions, communications and information may
be subject to disclosure in any present or future judicial or administrative proceeding in
any of the following six circumstances:
i. Attendance: Whether the parties and their counsel attended the initial session will
be reported to the Court.

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ii. Session Information: The Mediator may report to the Court whether the parties
are requesting additional mediation sessions as well as the dates of any mediation
sessions.
iii. Waiver: Parties to the mediation and the Mediator may agree to waive
confidentiality. The waiver must specify the individual communication(s) or
information that will be disclosed, the person or entity to whom the disclosure will
be made, and the purpose of the disclosure. All waivers shall be in writing.
iv. Written Agreement: A writing signed by all the parties embodying a negotiated
agreement may be submitted to the Court for review. Only those signed agreements
that have become court orders or decrees may be admissible in any present or future
judicial or administrative proceeding.
v. Threats of Imminent, Serious Harm: If a communication or information
constitutes a credible threat of serious and imminent harm, either to the speaker or
another person or entity, the appropriate authorities may be notified.
vi. Allegations of Child Abuse or Neglect: If a communication or information relates
to an allegation of child abuse or neglect as defined in Family Court Act § 1012(e)
and (f) and Social Services Law § 412, and for which disclosure is required pursuant
to Social Services Law § 413, appropriate authorities may be notified.
VII. MEDIATORS
a. Qualifications
i. The Court shall establish, and the ADR Coordinator shall maintain, a roster of
trained mediators (“The Court Roster”) for the Program. To be eligible to join the
Court Roster as a Mediator, an applicant must demonstrate temperament, training
and experience that are satisfactory to the Court. Such competence can be
demonstrated by the applicant’s compliance with Part 146 of the Rules of the Chief
Administrative Judge, which requires that:
1. All Court Roster Mediators shall have received at least:
a. 24 hours of basic mediation training,
b. 16 hours of additional training in the specific mediation techniques
applicable to that Court’s matters.
2. All Court Roster Mediators shall have experience mediating the types of
cases that come before the particular Court. Mediation experience can be
achieved by:
a. Mediating or co-mediating at least three (3) Supreme Court cases in a
New York State Court.
3. All Court Roster Mediators must receive six hours of approved Continuing
Legal Education relevant to mediation and/or Supreme Court matters every
two years.

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ii. Notwithstanding the foregoing, fulfillment of the Part 146 requirements does not
guarantee acceptance onto the Court Roster. Final placement on the Roster is in the
sole discretion of the Administrative Judge. The Administrative Judge reserves the
right, under appropriate circumstances, to deviate from the Part 146 guidelines for
Court Roster selection stated above.
b. Selection:
i. The Court or its designee shall appoint a Mediator or Co-Mediators from the Court
Roster.
ii. Co-mediation may occur as part of an apprenticeship program when one mediator is
mentoring another. Co-mediation may also occur when two Court Roster Mediators
are appointed to the case.
iii. The Court Roster shall include Mediators who can provide free and reduced-fee
mediation services to qualified participants.
iv. If parties reject an appointed Mediator, they must notify the ADR Coordinator
within three (3) business days. If the basis for the rejection is a conflict of interest
between the Mediator and one of the parties or their attorneys, the parties may
request a different mediator from the Court Roster. Rejection will not extend the
time permitted for the completion of mediation.
v. Upon receipt of the Order of Reference, and in compliance with the Program
Rules, parties may opt out of the Court’s mediator appointment process and hire at
their own expense:
1. a private mediator who is not on the Court Roster.
2. a mediator who is on the Court Roster. Mediators who are members of the
Court Roster but are selected independently of the court’s selection
process are not obligated to provide the first ninety minutes of the initial
mediation session without compensation or adhere to the rate of Mediator
compensation identified in Paragraph IV(e)(iv).
c. Immunity
i. The Mediator shall be immune from suit as a result of any conduct or omission
during performance of duties in that capacity to the extent permissible by law. Any
person designated by a court to serve as a volunteer ADR neutral pursuant to an
ADR Plan, and serving without compensation, shall be immune from suit based
upon any actions engaged in or omissions made while serving in that capacity, and
shall be indemnified against the costs of defending any claim based on such actions
or omissions, to the extent permitted by applicable law, including Public Officers
Law §17.
ii. Should a party attempt in any legal action to compel the testimony of the Mediator
concerning the substance of a mediation, that party shall hold the Mediator

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harmless against any resulting expenses, including reasonable legal fees incurred
by the Mediator or the reasonable value of time spent by the Mediator in
representing himself or herself in connection therewith.
d. Avoiding Conflicts of Interest
i. Before accepting an appointment as a Mediator, a Mediator shall make an inquiry
that is reasonable under the circumstances to determine whether there are any known
facts that a reasonable individual would consider likely to affect the impartiality of
the Mediator, including a financial or personal interest in the outcome, and an
existing or past relationship with a party or their attorneys or foreseeable participant
in the mediation. If the Mediator wishes to accept an appointment after discovering
a potentially disqualifying fact, the Mediator shall disclose the disqualifying fact to
the parties and shall not serve unless the parties consent thereto in writing. If, after
accepting a case, a Mediator learns of any disqualifying fact, the Mediator shall
disclose it to the parties as soon as practicable. If such conflict is not waived by the
parties, or if, such conflict might reasonably be viewed as undermining the integrity
of the mediation, the Mediator shall withdraw and notify the parties and the Court.
In such an event, the Court shall appoint a new Mediator for the case.
e. Quality Assurance
i. The ADR Coordinator shall develop and promulgate consistent practices for
ensuring mediator quality and fitness. Such practices may include, but are not
limited to:
1. Observing mediators periodically;
2. Providing and/or requiring continuing education relevant to mediating
Supreme Court cases;
3. Debriefing cases with mediators.
ii. Any Court Roster Mediator or prospective Mediator may be observed at any time
by the ADR Coordinator, or by staff of the NYS Unified Court System’s Statewide
ADR Office, before appointment on the Court Roster or to remain on the Court
Roster.
VIII. ADR PROGRAM CONTACT
a. The ADR Coordinator for Kings County Supreme Court, Civil Term, is:
Kelechi Acholonu, Esq.
Kacholon@nycourts.gov

b. The ADR Coordinator shall oversee the administrative requirements of the ADR
Program, which includes but is not limited to:
i. Monitoring all proceedings referred to mediation;
ii. Assigning Mediators from the Court Roster;

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iii. Providing information to the court on the status of cases referred to mediation;
iv. Maintaining statistical data on the Program.

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KINGS COUNTY SUPREME COURT, CIVIL TERM
PRESUMPTIVE MEDIATION PROGRAM AGREEMENT TO MEDIATE

1. We understand that we are allowed one free, 90-minute initial mediation session. If
we choose to continue beyond the initial 90-minutes, we, the parties, will pay the
Mediator a designated fee of up to a maximum of $400 per hour, agreed upon
beforehand, in writing.

2. We understand that mediation is voluntary; we can choose which points to discuss and
we can, with good cause, opt-out of mediation, if approved to do so by the Court.

3. We understand that if we do not work out an issue in mediation, we can return to
Court.

4. We understand that we are each free to talk with a lawyer now, before, during or after
the mediation sessions.

5. We understand that the mediator is not acting as a lawyer for either of us, and will not
be giving us legal advice or opinions on the law. The mediator may share with us legal
information.

6. Except for allegations of child abuse or threats of imminent harm, we understand that
what is said during this process will be confidential. The mediator agrees not to reveal
any oral or written communications to others, including the Court, without the consent of
all parties.

7. We agree that if we do go to Court, we will not testify about what happened in the
mediation. We will not ask the mediator or the other party to give evidence about what
happened in the mediation, and we will not demand anything prepared for the mediation,
unless it is allowed by law.

8. We understand that the mediator shall be immune from suit to the extent allowed by
law.

__________________________________ _____________________________
(Plaintiff - Signature) (Defendant Signature)

__________________________________ _____________________________
(Print name) (Print name)

__________________________________ _____________________________
(Attorney for Plaintiff - Signature) (Attorney for Defendant Signature)

__________________________________ _____________________________
(Print name) (Print name)

__________________________________ ____________________________
(Mediator - Signature) (Date)

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Case Info

Judge

Debra Silber Track Judge’s New Case

Case No.

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Document Filed Date

December 10, 2020

Case Filing Date

March 03, 2017

County

Parties

BOECKLE, NICOLE Attorney for the Defendant
BUNDOCK, THOMAS HERBERT Attorney for the Defendants
CORNERSTONE BUILDERS NY LLC Defendant
JAFFERY, ALI R. Attorney for the Defendants
KALLFA, EVIS Attorney for the Plaintiff
MB LORIMER LLC Defendant
PLATTA, SLAWOMIR WIESLAW Attorney for the Plaintiff
REID, AOIFE Attorney for the Defendants
Robert Zaborski Plaintiff
ROLLE, LISA M Attorney for the Defendant
TAUB, MICHAEL L Attorney for the Plaintiff
VANNELLA, BRIAN JAMES Attorney for the Plaintiff
WIERZBICKI, PAWEL PIOTR Attorney for the Plaintiff
HOWARD FREDERICK Attorneys for Plaintiffs
SAIFUL ISLAM Attorneys for Defendants
TALENE WHITE Attorneys for Defendants
BRANDON COTTER Attorney
KELECHI ACHOLONU Attorney
NEIL SAMBURSKY Attorneys for Defendants
DAWN WHEELER Attorney
LAURENCE ROGERS Attorney

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Document for Robert Zaborski v. Mb Lorimer Llc, Cornerstone Builders Ny Llc

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