Court of Appeal Reminds That “The Essence of Mediation Is Its Voluntariness”
Jeld-Wen was a minor player in a complex construction dispute. It was ordered by the trial court to attend a mediation and pay its share of costs. Jeld-Wen refused to attend, and was duly ordered to attend and sanctioned. Jeld-Wen sought a writ of mandate directing the trial court to set aside its ruling, and the Court of Appeal duly issued an order to show cause. Jeld-Wen, Inc. v. Superior Court, 146 Cal.App.4th 536, 53 Cal.Rptr.3d 115 (2007).
Held: “[A] case management conference order requiring that parties in complex cases attend and pay for mediation is not authorized by the statutory scheme . . . and is contrary to the voluntary nature of mediation.” (Distinguishing Lu v. Superior Court, 55 Cal.App.4th 1264 (1997): “a referee appointed under section 639 may conduct a mandatory settlement conference in a complex case . . . “).
The Mediation Was Reasonably Necessary to the Conduct of the Litigation
An award of costs for mediation is not statutorily proscribed, and costs may be awarded in the court’s discretion so long as they re “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Gibson v. Bobroff, 49 Cal.App.4th 1202 (1996); Cal. Code Civ. Proc. section 1033.5, subd. (c)(4).