A Failure To Mediate Results In A Failure To Litigate
Friday, February 5, 2016

Mediation is often viewed as less costly alternative to litigation.  Therefore, it is not unusual for parties to include a mediation provision in their contracts, such as the following:

The parties agree that any disputes or questions arising hereunder, including the construction or application of [the] Agreement shall be submitted to mediation between [MBA] and [Alaska Pacific] with the rules of the American Arbitration Association, of which any hearing or meeting should be conducted in Reno, NV.  Any mediation settlement by the parties shall be documented in writing. If such mediation settlement modifies the language of this Agreement, the modification shall be put in writing, signed by both parties and added to the Agreement as an attachment.

If mediation between the parties does not result in a mutual satisfying settlement within 180 days after submission to mediation, then each party will have the right to enforce the obligations of this Agreement in the court of law of Reno, Nevada with all reasonable attorney fees, court costs and expenses incurred by the prevailing party in such litigation to be paid by the other party.

What if one party decides to bypass mediation and go directly to court?  The Nevada Supreme Court answered that question yesterday in MB America, Inc. v. Alaska Pacific Leasing Co., 132 Nev. Adv. Op. 8 (Feb. 4, 2016).  In an opinion by Justice Nancy M. Saitta, the Court held that the mediation provision quoted above established an enforceable condition precedent to litigation.  Because it was undisputed that the plaintiff had not complied with the mediation provision, the Supreme Court upheld summary judgment in favor of the defendant.  Moreover, the fact that the defendant had not accepted informal mediation requests did not change this result.  Finally, the Supreme Court upheld the trial court’s award of attorneys’ fees in favor of the defendant.

It’s not Christmas, so why no “L”?

I was amused by an article in The Wall Street Journal yesterday concerning some Latin students’ distress over the fact that the upcoming game is denominated “Superbowl 50″ and not “Superbowl L”.  See “How the Super Bowl ost a etter” [sic] (Feb. 4, 2016).  Although the Superbowl will be played in California this weekend, my personal connections to the game are tenuous. I once played football in Charlotte, North Carolina, but it was in a game against Charlotte Country Day School.  Also, I did not play nine seasons as a guard for the Denver Broncos either before or after taking up the practice of law.

 

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