Opinion
No. 5:01CV2701
August 7, 2002
ORDER
Now before the Court is the plaintiffs' motion to end alternative dispute resolution and for an award of attorney fees (Doc. #28). The defendants, Unum Insurance Company of America ("UNUM"), and Children's Hospital Medical Center of Akron ("the hospital"), do not oppose the motion to end ADR but do oppose the motion for attorney fees (Docs. #29, 31). For the following reasons, the Court grants in part and denies in part the plaintiffs' motion.
Although the parties originally agreed to attempt to mediate this case, it became clear during the course of settlement negotiations that mediation would not be effective. Because all parties agree that ADR will no longer be helpful, the Court grants the Gieger's motion to terminate the reference to ADR.
The plaintiffs seek attorney fees either pursuant to Local Rule 16.6(f) or under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(g). Local Rule 16.6(f) authorizes the imposition of appropriate sanctions for a party's willful failure to attend a mediation conference. N.D. Ohio Local R. 16.6(f). No evidence of a willful failure to attend a mediation conference has been presented to the Court. It appears that the parties could not initially agree on a date for mediation and that, when that date was ultimately set for May 6, 2002, UNUM cancelled the mediation, at least in part because UNUM's representative had experienced a family emergency and was unable to travel from Portland, Maine to Cleveland. There having been no willful failure to attend a mediation conference, sanctions pursuant to Local Rule 16.6(f) are inappropriate.
Title 29 U.S.C. § 1132(g) provides that "[i]n any action under [ERISA] by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." Insofar as the plaintiffs seek attorney fees in connection with UNUM's conduct with regard to the failed attempt to mediate this case, the Court finds that an award of attorney fees would be inappropriate at this point. Both sides have incurred expenses in attempting, unsuccessfully, to resolve this matter through mediation, and there is little indication that UNUM has purposely subverted the ADR process. The Court therefore declines to award attorney fees at this stage of the litigation. The Court denies the motion for attorney fees, but does so without prejudice to plaintiffs' seeking fees in connection with the attempted ADR at a more appropriate point in the case. The Court will be willing to entertain a motion for attorney fees later in this litigation, if, for example, a clearer pattern of bad faith on the part of UNUM develops or if the plaintiffs ultimately prevail and seek fees in connection with this litigation as a whole, including in connection with the failed mediation.
For these reasons, the plaintiffs' motion is granted in part and denied in part.
IT IS SO ORDERED.