Bob Hunt over at Realty Times has a nice consumer-friendly article entitled Californa Court Holds That Mediation Provision "Means What It Says". /*
As Hunt writes,
The standard residential purchase contract in California is produced by the California Association of Realtors® (CAR). It contains two sections that are easy to overlook or to take as “boilerplate”, but that can be very important if things go awry between the parties. One of those sections deals with attorney fees, providing that, in the event of any proceeding between buyer and seller, the prevailing party shall be entitled to attorney fees and costs from the non-prevailing party. The attorney fee section contains an exception, however, and that exception is spelled out in the portion of the contract referring to mediation. There it is said that, if either party initiates an action “without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees… .” [my emphasis] /*
When Mr. Thrifty and I purchased our house in '02, we were presented with one of these form contracts. I'm a lazy form contract signator myself. Negotiation training or not, I generally assume these contracts are "take it or leave it" and I sign them accordingly. /**
Not Mr. Thrifty.
"What's the procedure?" I recall him pressing our real estate agent. "When is the demand for mediation supposed to be made and how are the parties supposed to conduct it and what happens if the parties can't reach agreement on the mediator to conduct the process?"
He was having none of it.
"I'm crossing it out," he said, as blue ink flowed over the mediation provision and our agent let out of small gasp of dismay.
By that time, everyone was so "bought in" to the sale, that Mr. Thrifty's effort to strike the form language prevailed. No mediation necessary in this household!
Beware of Form Contract Language
As Bob Hunt explains, the Lange Court gave the back of its hand to the contention that it was "too difficult" to make the required demand for mediation.
“If the [sellers] could be found and served with a lawsuit by mail, they could have been sent a mediation demand by mail[,]” [held the Court] All that the plaintiff had to do was attempt to mediate before he filed suit; and he didn't. Quoting a related case, the court noted that the mediation provision “means what it says and will be enforced.”
Though it's not surprising to find bare bones ADR provisions in industry form contracts -- bones so bear that their meaning must be litigated -- defeating the purpose of the summary proceedings provided for -- it is surprising to find attorneys continuing to paste form contract language into their client's negotiated agreements. This is particularly troublesome when what's at stake -- the attorneys' fees -- makes the difference between bringing litigation or not or settling litigation or not.
If it's worth putting a clause into your contract, it's worth spending the time to imagine what might happen if circumstances triggering that clause arise. If you're practicing in a firm with both transactional and litigation attorneys, I highly recommend that the wordsmiths run the "standard" ADR, attorney fee, choice of law, and venue provisions by the litigators who have undoubtedly already tested these provisions in the fire of conflict. You won't be sorry you did.
*/ The case -- Lange v. Schilling -- was originally ordered not not to be published. Had that Order stood, the case would not create precedent under California law. As the reader of the linked opinion can see, however, it was subsequently ordered published and can be cited as authority.
**/ The form contract language at issue reads as follows:
Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. . . . If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.