Contractual Agreements to Mediate

Another case in the line of cases holding parties to their commitments to mediate before filing suit.

Earlier this month, in Adams v. Newport Crest Homeowners Association, 2009 WL 2875361,
(Cal.App. 4 Dist., 2009), a California appellate court upheld the dismissal of a case on the grounds that the plaintiff failed to pursue mediation prior to seeking judicial relief.  The agreement to mediate appeared in the settlement of a prior dispute, and that settlement was entered as a judgment of the court.  As a result, I think this case might reasonably be read more as a case about failure to comply with a judicial order to mediate than as a case about failure to adhere to a contractual obligation to mediate.  Or perhaps it is a hybrid between the two.  In either event, the result was the same.

As I posted in an earlier blog entry, these cases that treat mediation as a jurisdictional prerequisite are fascinating.  It’s true that one could discharge this obligation to mediate without significant cost in most cases.  (It’s an agreement to mediate, not an agreement to agree, not even an agreement to make an offer of a particular flavor.)  But these cases do raise the likelihood that we’ll see even more litigation about what it means to mediate.  Most of these contractual obligations do not include explicit good faith requirements, as far as I know, but it’s no stretch to imagine pieces of the “good faith” framework being incorporated into an analysis of whether a set of mediation behaviors  amounts to discharging a contractual duty to mediate.

Michael Moffitt

3 thoughts on “Contractual Agreements to Mediate”

  1. Really interesting case. The idea of mandatory mediation is both contrary to the concept of mediation and logical at the same time. It will be interesting to see where the cases (and the contracts) go in this respect in the future.

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