Mediation/Attorney’s Fees: Prevailing Parties Are Barred From Recovering Attorney Fees Because They Refused to Mediate

 

Standard Form Residential Agreement Typically Provides That Prevailing Party in Litigation or Arbitration Who Refused a Request to Mediate Before Commencement of Such Proceedings is Barred From Recovering Fees

     Buyers sued home sellers for specific performance and lost the lawsuit. Sellers filed two motions for attorney’s fees, both of which were granted. The buyers appealed the order awarding attorney’s fees. Frei v. Davey, 124 Cal.App.4th 1506, 22 Cal.Rptr.3d 429 (2004), arguing that the sellers had refused to mediate.

     In an opinion authored by Justice Fybel, the Fourth District, Division 3, ruled that, “[t]he new provision barring recovery of attorney fees by a prevailing party who refuses a request for mediation means what it says and will be enforced.” Also, the court found that there was a lack of substantial evidence to support the trial court’s finding that the sellers did not refuse to mediate. They had refused to mediate, improvidently, and as a consequence, even though they prevailed, they lost their award of attorney’s fees on appeal.