Thursday, July 31, 2008

If Your Contract Requires Mediation Before Court, Mediate!

If the contract you signed states that the parties agree to mediate any disputes, you must comply with that provision and mediate before you run off to file any type of lawsuit, or else your lawsuit will be dismissed. All types of contracts can have a mediation provision (which is different from an agreement to arbitrate), including real estate purchase agreements, lease agreements, employment agreements, premarital agreements, marital settlement agreements or any other agreement.

Here is a short article from the National Arbitration Forum, titled: "Failure to Comply with Contractual Obligation to Mediate Results in Dismissal of Case"

A California federal court determined that the failure to mediate a dispute pursuant to a contract that made mediation a condition precedent to filing a lawsuit warranted dismissal.

In Brosnan v. Dry Cleaning Station Inc., No. C-08-02028 EDL, 2008 WL 2388392 (N.D. Cal. June 6, 2008), Brosnan entered into a franchise agreement with Dry Cleaning Station. The franchise agreement included a provision, which required both parties to enter into mediation of all disputes prior to initiating any legal action against the other.

Thereafter, Brosnan filed an action against Dry Cleaning Station alleging state law claims relating to fraud and breach of contract. Dry Cleaning Station filed a motion to dismiss Brosnan's complaint based on Federal Rule of Civil Procedure 12(b)(6) on the grounds that Brosnan failed to engage in mediation of the dispute prior to filing their lawsuit as required by the franchise agreement.

In response, Brosnan sought a stay of the matter rather than a dismissal. The Court stated that a claim filed before satisfaction of a condition precedent, such as a mediation requirement, should be dismissed.

In this instance, there was no dispute that Brosnan did not pursue mediation prior to filing the lawsuit. Under these circumstances, Dry Cleaning Station opted for dismissal. The Court granted Dry Cleaning Station's motion and dismissed the case.

The Court noted that in contrast to mediation, where a plaintiff attempts to exhaust its arbitration remedy or raises issues not susceptible to arbitration or not covered by the arbitration agreement, a stay rather than dismissal of the lawsuit is appropriate.

1 comment:

cnbernick@snet.net said...

I also am a franchisee and am wondering how to get some (if not all) of my investment back. Dry Cleaning Station should be stopped and held accountable for the number of lives that have been destroyed by their flawed business model. We are so far in debt that we can not even consider a lawyer.