Thursday, January 06, 2005

“But I Don’t Want to Go to Mediation!” – Part II. More Consequences.

In an earlier post, November 30, 2004, we examined an appellate opinion from Great Britain which provided an analysis a court may make when a party does not want to go to mediation. This article in the Metropolitan News-Enterprise in California illustrates the consequences of a contracting party’s refusal to go to mediation when the contract required mediation prior to litigation. Even if the refusing party “wins”, they may “lose” – i.e., a party refusing a request to mediate a dispute that ripens into litigation may not recover attorney fees at the conclusion of the litigation, even if that party is the prevailing party. By the way, the case is Frei v. Davey, (December 17, 2004, G033682).

All to say, a contract provision requiring mediation is enforceable, even in this unexpected way!

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