involved in a dispute, take careful note of the recent California court ruling
in Cullen v. Corwin (2012) 206 Cal.App.4th 1074. The key facts of that case may very well
apply to you. Make sure you don’t make
the same mistake the defendant made in that case or you could lose your
contractual right to recover your attorney’s fees (which could be a six-figure
amount) when you win your next lawsuit.
into a “standard form” real estate purchase contract (but this case applies to
ALL contracts, not just real estate contracts).
A dispute arose from that contract.
The contract included a fairly standard attorney’s fees clause,
providing that the prevailing party in any dispute is entitled to recover their
legal fees. However, that right was made
subject to a common mandatory mediation clause: “If, for any dispute … to which this paragraph applies,
any party commences an action without first attempting to resolve the matter
through mediation, or refuses to mediate after [the making of ] a
request …, then that party shall not be entitled to recover attorney[ ]
fees….” Different contracts may have different versions of this clause, but the
essence of this court’s decision is still relevant.
twice, but defendant rejected both requests because he first wanted to engage in
some discovery and have the court rule upon his motion for summary
judgment. The defendant won his motion
for summary judgment, and received a judgment in his favor.
fees under the attorney’s fees clause, the court denied his request because defendant
failed to mediate when requested by plaintiff.
In so holding, the court issued strong language that every litigant
provision barring recovery of [legal] fees by a prevailing party who refuses a
request for mediation means what it says and will be enforced.”…
“is designed to encourage mediation at the earliest possible time ”…;
opponents accordingly are not entitled to postpone it until they feel that they
have marshaled the strongest possible support for their positions in litigation
and mediation. Moreover, there is a strong public policy in the
promotion of mediation “ ‘as a preferable alternative to judicial
proceedings’ ” in a less expensive and more expeditious forum. (citation omitted.) The costly and
time-consuming procedures connected with discovery are thus not a necessary
adjunct to mediation proceedings that a party can demand before participating.
These excuses are therefore inadequate as a matter of interpretation of the
contractual provision in light of the policy it promotes. (emphasis added.)
losing the money war.
with your lawyer as soon as the dispute begins. You must understand if your contract has a
mandatory mediation clause and, if it does, precisely what it requires. Some require a mediation to take place within
a relatively short period of time at the beginning of a dispute. The current California Association of Realtors
Residential Purchase Agreement mandatory mediation provision (in Paragraph 26A) has important differences from the
language in the above case. Not every
mandatory mediation clause is the same and you should have a lawyer help you
understand the language and requirements of yours. This
important new court decision puts everybody on notice: the courts will strictly enforce these
mandatory mediation clauses. Make sure
you use this court ruling to your advantage in your next dispute.
dispute, come to our Firm. You’ll get the special attention of me and our
dedicated staff. We’ll go the extra mile to see that you receive the result you
want and the full justice you deserve. Every one of our clients is like family.
They’re close to us. They know what’s going on. We firmly believe that you
can’t do any better than having our firm represent you. Let us prove it to you.
like to discuss, please mention this blog post when you contact us and you’ll
receive a free consultation (a $100 minimum value). Call 800-553-7626 or e-mail