The Parties Had Agreed To Mediate.
Efforts to avoid mediation can be costly. For example, in real estate disputes, the standard California Association of Realtors purchase and sale agreement requires mediation before litigation – and participation in mediation becomes a precondition to collecting attorneys fees for a prevailing party. In our next case, a family law case, the parties agreed to mediate their disputes concerning a martial settlement agreement, and the efforts of the ex-husband to thwart mediation resulted in a sanctions award of $10,000 under Family Code section 271. Dyer v. Dyer, H038921 (6th Dist. Feb. 20, 2015) (Mihara, Bamattre-Manoukian, Grover) (unpublished).
Most of the fee award ($50,000) was awarded under section 2030, not 271. To reach its result, the Court of Appeal first had to conclude that a fee provision in a marital settlement agreement was not so broad and exclusive as to preclude fee recovery under section 2030. See today’s post in California Attorney’s Fees.
However, there was also substantial evidence that Wayne Dyer sought to avoid mediation, and that Wayne’s claims about a lack of evidence on this point were not entirely candid: “The record is replete with evidence,” said the Court, “that Wayne repeatedly attempted to avoid mediation even after the court had ordered that it occur.” That litigation conduct resulted in $10,000 in attorney’s fees as a sanction award to Carrie Dyer.
COMMENT: The Court of Appeal notes: “Carrie’s attorney explained that ‘we finally had our mediation, and it was unsuccessful.’ Carrie had decided to dismiss her motion due to her medical condition and lack of financial resources.” Notwithstanding the fees awarded under sections 2030 and 271, will hardball litigation tactics ultimately succeed in their objective?