For some time now there has been a pilot Mediation Program in effect in the Manhattan Small Claims night court The mediators are probably law students. The program is obviously designed to encourage settlements, and may also be designed to encourage parties to agree to have their case decided by an arbitrator rather than a judge. If you know that you, your client, or the other side won’t possibly settle, it seems like a big waste of time to me. However the mediation can be a great opportunity to find out what the other side’s case or defense is all about. If the other side is unrepresented, it is likely that he or she won’t understand that the mediation “doesn’t count”, and that the more they talk in the mediation the more they tip their hand. But by the same token your client can easily tip his hand as well, as the temptation to “vent” or try to persuade the mediator of the merits of their case or defense is very great.
While mediation is optional in NYC, the one time I tried to opt out I was told that the Judge would be told that I (or my client) had refused to cooperate. As far as I know, in the 5 boros, the program is only up and running in Manhattan, although I understand that Courts on Long Island have a truly mandatory Mediation Program where an actual “trial” takes place with witnesses being called, etc., although the trial “doesn’t count”. That’s a large part of the reason why I don’t do Small Claims cases on Long Island.