Voluntary Mediation Fees Are Sometimes a Recoverable Cost

Berkeley Cement, Inc. v. Regents of the Univ. of Cal., No. F073455 (D5 Jan 7, 2019)

This is one of those long, grab-bag post-trial appeals that raises too many issues. As is typical when parties dilute their arguments like that, basically everything gets affirmed. In this option, all that stuff is unpublished. 

The only published part deals with whether fees paid to a mediator in connection with a mediation that is not court-ordered can be recoverable costs under Code of Civil Procedure § 1033.5. Mediation costs are neither categorically recoverable under § 1033.5(a), nor categorically unrecoverable under § 1033.5(b). They thus may be awarded when, in the discretion of the trial court, they are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” § 1033.5(c)(4). 

An earlier Court of Appeal case held that mediation expenses were recoverable under the discretionary provision when the mediation was court-ordered. Gibson v. Bobroff, 49 Cal. App. 4th 1202 (1996). While that is perhaps sufficient to being “reasonably necessary,” the Court here declines to make it necessary. 

As the Court explains, expenses for a consensual mediation could potentially meet the reasonable necessity standard. Whether they do needs to be decided based on the facts and circumstances of a particular case. Here, the only challenge here is categorical. Appellant argues that a mediation not ordered by the court is never reasonably necessary. It doesn’t challenge the trial court’s fact-finding or its exercise of discretion under § 1033.5(c)(4). Given that the purely legal issues don’t carry the day, the trial court’s decision to award mediator fees gets affirmed.

Affirmed in relevant part.