(Betchart v. Ludwig Betchart, 2013 Cal. App. Unpublished 2082; Gibson v. Bobroff (1996) 49 Cal.App.4th 1202)

A prevailing party may be able to recover the mediation fees as an item of costs under Section 1033.5 of the Code of Civil Procedure. Mediation fees are not listed among the recoverable costs to a prevailing party. However, under CCP § 1033.5(d)(4) “the court has discretionary power to award items of costs that are “reasonably necessary to the conduct of the litigation” as compared with costs that are only convenient or beneficial. If the court orders mediation, mediation fees may be recoverable. A trial court’s award of mediation fees is reviewed using the abuse of discretion standard.

This subject was recently considered in Waldtraut Betchart v. Ludwig Betchart, Inc. 2013 Cal. App. Unpublished 2082. In that case the trial court denied mediation fees as costs. On appeal, the denial was affirmed because the mediation had not been court-ordered, and because the mediation involved multiple disputes between the parties, not just the lawsuit that was the subject of the trial. The Court of Appeals affirmed the judgment, ruling that the court had not abused its discretion in declining to award fees. In so ruling, the court reviewed existing caselaw, which had indicated that there could be an award of mediation fees as costs where the court had ordered the parties to mediation:

In urging us to find that the trial court abused its discretion when deducting the costs associated with the mediation, Tony cites Gibson v. Bobroff (1996) 49 Cal.App.4th 1202. The court in Gibson held that an award of mediator fees is not statutorily prohibited. The Gibson court concluded that [fees for] a courtordered, unsuccessful mediation, should be awarded after trial to a prevailing party at the sound discretion of the trial court. (Id. at p. 1209.) The court, however, declined to decide whether a prevailing party after a trial is entitled to costs when the mediation is voluntary and unsuccessful. (Ibid. at fn. 7.)

In the present case, the court did not order mediation, and the mediation occurred before Tony became a party to this action. Furthermore, it is clear from the trial court's later order regarding costs requested by LBI that the mediation was an attempt to resolve several pending actions between the parties. Given that the mediation involved several cases, we conclude that Tony has failed to show that the mediation was reasonably necessary to the present litigation. (Betchart, supra.)

The take-away from Betchart is that mediation fees should be included in your costs bill after prevailing at trial, and there is legal support [Gibson v. Bobroff (1996) 49 Cal.App.4th 1202] for the award of such fees. Your position will be stronger if the mediation is courtordered.

Before going to a mediation, you may want to consider indicating to the court (perhaps at a status conference) that you would be willing to go to mediation if the court orders it. This might enhance your claim to mediation fees after trial.