April 10, 2015
SHERRI L. LIERENZ and JOHN W. LIERENZ, Plaintiffs,
EVERETT NELSON MCCALL, SR, Defendant.
Jan R. Jurden, President Judge
AND NOW TO WIT, this 10th day of April, 2015, IT IS HEREBY ORDERED THAT the Plaintiffs' Motion to Recover Costs of Court-Ordered Mediation as "Costs Accrued" when Accepting Offer of Judgment Pursuant to Rule 68 is DENIED for the following reasons:
1. On February 15, 2012, Plaintiffs Sherri and John Lierenz ("Plaintiffs") and Defendant Everett McCall, Sr., engaged in mandatory court-ordered alternative dispute resolution pursuant to Superior Court Civil Rule 16. Negotiations continued with the mediator via email communications and teleconferences until January 8, 2015.
2. Defendant made an offer of judgment, pursuant to Rule 68, for a sum certain, plus ordinary court costs on January 8, 2015. On January 14, 2015, Plaintiffs accepted the offer of judgment, together with the following costs: Lexis Nexis Court link filing fees; Certified Judgment, Voluntary Assessment Center; and Superior Court Mediator's Fee.
3. Defendant refused to reimburse Plaintiffs for Plaintiffs' portion of the mediator's fee because the mediation agreement provides that the fee is to be divided equally between both sides. Plaintiffs now seek an order awarding them the mediator's fee against Defendant. Plaintiffs argue that mediators' fees in court-ordered compulsory mediations should be deemed reasonable and necessary costs recoverable to a party accepting an offer of judgment pursuant to Rule 68.
4. Pursuant to Rule 16, court-ordered alternative dispute resolution is compulsory. Rule 16(b) provides that, "[t]he parties shall pay the ADR Practitioner in accordance with the allocation and amount of fees established by the ADR Practitioner and agreed to by the parties or ordered by the Court."
5. Traditionally, parties split mediators' fees, and Delaware Courts have been reluctant to disturb this practice. However, Delaware Courts have allowed the recovery of mediation fees when the jury awarded no damages to the plaintiff or the jury awarded an amount greater than the defendant's offer of judgment. For example, in Baird v. Owczarek, the trial judge awarded mediation fees to the defendant, the prevailing party, because the mediation failed, the parties negotiated in good faith during mediation and the plaintiff did not accept the offer, the mediator's fee was reasonable, and the jury awarded no damages to the plaintiff.
6. Here, the mediation agreement signed by Plaintiffs and Defendant provides that the mediator's fee is to be divided equally between both sides. The Court finds no reason to disturb this equitable division.
IT IS SO ORDERED.