Posts Tagged ‘mediation costs’

A CONTRACTUAL MEDIATION PRECONDITION REQUIREMENT AND AN AWARD OF ATTORNEY’S FEES

Lange v. Schilling (2008) 163 Cal.App.4th 1412 holds that a party to a contract which provides that to receive attorney’s fees and costs a prevailing party must first attempt to mediate the matter before commencing arbitration or a court action may not receive such fees for failing to comply with that condition precedent.

The parties in Lange v. Schilling used a standard California residential property purchase agreement for the sale and purchase of a house. The agreement contains language that a prevailing party shall be entitled to reasonable attorney’s fees and costs but “shall not be entitled to recover (those) fees” if that party “commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made.”
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APPEARANCES AT MEDIATIONS

Although the law is clear, at least as far as court-ordered mediations are concerned, that all counsel and parties (including insurance representatives) shall attend the mediation (see below, occasional non-compliance with this requirement can impede settlement. It is therefore advisable when a necessary person to the mediation cannot be present because of employment, family or geographical circumstances, that counsel for that party or entity advise the mediator of the absence and ask that it be excused and/or that the person be available by telephone. The mediator will appreciate this courtesy.
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