IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

SHERRI L. LIERENZ and )

JOHN W. LIERENZ, )

 )

Plaintiffs, )

 ) C. A. No. N13C-12-187 JRJ

 v. )

 )

EVERETT NELSON MCCALL, SR, )

 )

Defendant. )

 )

ORDER

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-
2

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 courtordered 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.1

 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.”2

5. Traditionally, parties split mediators’ fees, and Delaware Courts have 

been reluctant to disturb this practice.3 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.

4

 1 Super. Ct. Civ. R. 16.

2 Id.

3

Reinke v. Furbush, 2011 WL 7063367, at *2 (Del. Super. 2011); Kuratle Contracting, Inc. v. 

Linden Green Condo., Ass’n, 2014 WL 5391291, at *10 (Del. Super. 2014). 4 See West. v. Maxwell, 2001 WL 789654 (Del. Super. 2001) (reimbursed prevailing plaintiff for 

the cost of two court-ordered mediations following a verdict in excess of the defendant’s offer of 

judgment); Spencer v. Wal-Mart Stores E., LP, 2007 WL 4577579, at *3 (Del. Super. 2007); 

Cooke v. Murphy, 2013 WL 6916941, at *6 (Del. Super. 2013) aff’d, 99 A.3d 226 (Del. 2014).
3

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.5

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.

Jan R. Jurden, President Judge

 5 Baird v. Owczarek, 2013 WL 4721375 (Del. Super. 2013) rev’d on other grounds, 93 A.3d 

1222 (Del. 2014).