You Always Want to Mediate
That’s the lesson from Cullen v. Corwin, an appellate court case that denied attorneys’ fees to a prevailing party that stubbornly refused to mediate early in its case. The case involved the sale of an allegedly-defective vacation home. The buyers sued but the sellers moved (successfully) to dismiss the case. The sellers then asked for their attorneys fees pursuant to a provision in the sale agreement that said that whichever party prevailed in a dispute could recover its attorneys’ fees, in addition to other damages. But because the sellers had refused to mediate without adequate justification, the court denied their request. The contract specifically said that the parties would mediate, which is different from most employment disputes, where fee-shifting is determined by statute instead of contract. But the case should encourage all parties, in all cases, to at least try mediation. Be quick to settle early and slow to settle late.