In civil litigation, which includes cases in the Probate and Family Courts, the American rule generally dictates that each party is responsible for its own attorney's fees and expenses. However, there are some exceptions to this, and in Massachusetts some 'fee-shifting' statutes provide for one party to cover the other's legal costs, particularly in domestic relations or family proceedings.
Cost can be a deterrent when parties are considering whether to mediate a complex business dispute. Mediation is an excellent opportunity to settle a case in advance of costly trial preparation, but mediation requires parties to pay for both a mediator and their attorneys' time to prepare for and attend the mediation. Are those costs recoverable if mediation is unsuccessful and findings at trial require the losing party to pay the winning party's attorneys' fees and costs? According to recent federal case law in the District of Massachusetts, the answer to that question depends on the basis of the fee-shifting award.