Attorney Fees by a Prevailing Party Who Refuses Mediation

In Frei v. Davey (2004) 124 Cal.App.4th 1506, was the first published case to interpret the standard form residential purchase agreement used in California after it was amended to preclude a party who refused a request to mediate from recovering attorney fees. Previously, the clause applied only to plaintiffs who failed to request mediation before initiating litigation. The main holding of Frei v. Davey is that, "The 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." (Frei v. Davey, supra, 124 Cal.App.4th at p. 1508.) In that case, the appellate court made it very clear that, "Communications between the parties or their counsel regarding settlement are not the same as mediation. In mediation, a neutral third party analyzes the strengths and weaknesses of each party's case, works through the economics of litigation with the parties, and otherwise assists in attempting to reach a compromise resolution of the dispute. " (Id. at pp. 1514-1515.)