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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Electric Man, Inc. v. Charos, 179 Vt. 351 (2006)

Citation
Electric Man, Inc. v. Charos, 179 Vt. 351 (2006)
Parent Document
Electric Man, Inc. v. Charos, 179 Vt. 351 (2006)
Jurisdiction
Vermont (state)
Effective Date
2006-02-10

Full Text

2,005 chars
¶ 15. Our main difficulty with the court’s reasoning, however, is that instead of justifying its denial of attorneys’ fees for participation in mediation, its rationale speaks to why we should in fact allow such recovery. Mediation has become an important part of litigation in this state. See Gates v. Gates, 168 Vt. 64, 72, 716 A.2d 794, 800 (1998) (acknowledging crucial role of alternative dispute resolution in settling disputes). Our civil rules now require parties to attempt alternative dispute resolution in many types of civil cases, see V.R.C.P. 16.3(a)(2); usually this is mediation. The purpose of alternative dispute resolution in most cases is to achieve a voluntary settlement of the litigation without a trial and with as little litigation expense as possible. See New Eng. Educ. Training Serv., Inc. v. Silver St. P’ship, 148 Vt. 99, 101, 528 A.2d 1117, 1118 (1987) (“[Cjompromises of disputed liability are favored by the courts as a matter of public policy.”); Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 192, 303 A.2d 811, 814 (1973) (“Public policy ... strongly favors settlement of disputed claims without litigation.”). To the extent we deny recovery for attorneys’ fees for participating in mediation on prompt payment act disputes, we discourage parties from voluntary participation or encourage only minimal participation. For this *358reason, other courts have held that attorneys’ fees can be awarded for representation in mediation. See Paris v. Dallas Airmotive, Inc., 2004 WL 2100227, at *8 (N.D. Tex.) (awarding fees for services of lawyer who specialized in mediation and noting that although no settlement resulted, decision to put special resources into mediation was reasonable); E.M. v. Millville Bd. of Educ., 849 F. Supp. 312, 315 (D.N.J. 1994) (allowing attorneys’ fees for work related to mediation). We agree that, absent an agreement between the parties that provides otherwise, attorneys’ fees may be recovered for the-participation in mediation in this case.