Mediation Message No. 6


If a case does not settle at court-ordered mediation, a party may be awarded its mediation costs, including the fees paid to consultants and retained experts, if they were “reasonably related to the conduct of the litigation,” as required by Code of Civil Procedure section 1033.5, subdivision (c)(2). (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202). In that personal injury action, the defendants refused to settle at a court-ordered mediation and thereafter suffered a greater judgment at the trial than their Code of Civil Procedure section 998 offer to compromise. The plaintiff’s successful cost memorandum included the fees for both an economist and a medical doctor who acted as a consultant as well as the costs of the mediation.

Gibson v. Bobroff expressly declined to decide whether a party prevailing at trial preceded by unsuccessful voluntary mediation would be entitled to its mediation costs (at p. 1209, n. 7), but the result should be no different because the policy of trial avoidance as recognized in the case (at p. 1208), is the same whether the mediation is voluntary or court ordered. Further, most mediations in Los Angeles County are court-ordered pursuant to C.C.P. section 1775.3 (Los Angeles County judges have the authority to order all at-issue cases to mediation), even if the parties in response to the order decide to select a private neutral rather than avail themselves of a pro bono mediator from the court’s panel.

As a caveat, it should be noted that cases predating the emergence of mediation as an accepted method of trial intervention appear to be inconsistent with Gibson v. Bobroff. See, as an example, Corona Foothill Lemon Company et al. v. Charles Lillibridge et al. (1936) 12 Cal.App.2d 549, 555-556, which held that expert fees at trial are not collectible when the expert is acting as a consultant or is merely listening to testimony for the purpose of qualifying himself/herself to later testify in the case. Corona Foothill should be distinguishable because it represents a different legal era when the courts were not so riveted on reducing congestion, as they are today.

Copyright, Michael D. Marcus, September 2003

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