No, that’s not a typo. And no, I am not among the persistent number who treat “arbitration” and “mediation” as coterminous. I mean “Mediation.” And I mean “Separability.”
I was reading a recent case — Santana v. Olguin, 208 P.3d 328 (Kan.App., May 29, 2009), and it made me wonder how courts treat mediation provisions in instances where one of the parties is alleging fraud in the formation of the contract. Clearly, some courts will go so far as to dismiss a party’s claim if the party refuses to mediate, if their contract requires them to mediate as a condition precedent to the contract. (The Santana case is worth reading in its own right, as it raises questions about the extent to which a mediation clause can be – or should be – read as requiring mediation before a suit is initiated. It’s also interesting as a data point regarding courts’ selection of remedies.)
I’ve never heard of (or until tonight, wondered) what happens the parties’ contract includes a mediation provision and their underlying lawsuit alleges fraud. Would courts make a distinction between alleged fraud in the inducement of the mediation clause and fraud regarding the container agreement? Should they?
Hmmmm….
Michael Moffitt
In recent years, I have never litigated a case where a judge did not require mediation prior trial in any case under a form case management order, although neither local rules nor the rules of civil procedure require facilitated mediation, in addition to the meet and confer requirements of Rule 16.
Given that a contractual mediation requirement is large empty anyway in this litigation context I’m not sure it would make any difference in my practice if there was a contractual mediation provision or not.
And everyone is putting mediation requirements into their contracts these days….